Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL SECURITY COUNSELORS, et al. ,
Plaintiffs,
Civil Action No. 12-284 (BAH) v.
Judge Beryl A. Howell CENTRAL INTELLIGENCE AGENCY, et al. ,
Defendants. MEMORANDUM OPINION
Thе plaintiffs—a group consisting of journalists, academics, and government watchdog groups—bring this action against the defendants Central Intelligence Agency (“CIA”) and Office of the Director of National Intelligence (“ODNI”) pursuant to, inter alia , the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq. The plaintiffs each submitted at least one FOIA request or Mandatory Declassification Review (“MDR”) request to the CIA between July 2011 and January 2012, and they challenge the CIA’s responses to those requests in a number of ways. In addition to issues related to specific FOIA requests, the plaintiffs claim that the CIA is engaging in a variety of policies or practices that constitute ongoing and systematic violations of the FOIA. Furthermore, the plaintiffs challenge the CIA’s promulgation of a final rule regarding how fees are assessed for MDR requests, without first subjecting the rule to notice-and-comment procedures. The CIA has now moved to dismiss nine of the twenty-six causes of action pleaded in the plaintiff’s First Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This partial motion to dismiss will be granted in part and denied in part.
I. BACKGROUND
This case, in its entirety, ultimately implicates over thirty separate FOIA and MDR requests submitted by the plaintiffs, along with four alleged policies or practices of the CIA and one final rule promulgated by the CIA. See First Am. Compl. (“FAC”) ¶¶ 19–233, ECF No. 9. The CIA’s pending partial motion to dismiss, however, only touches upon fourteen of these specific requests, [1] in addition to the four policies or practices and the single final rule. Therefore, the Court will only set forth the facts that are relevant to deciding the pending motion.
A. Specific FOIA Requests
On October 20, 2010, plaintiff National Security Counselors (“NSC”) submitted to ODNI a FOIA request “for all FOIA Referral Memos sent to other government agencies in Fiscal Year 2010 and any subsequent correspondence with the agencies regarding these memos or the records to which they refer.” Id. ¶ 221. In response to this request, on July 20, 2011 (“Request #1”) and November 4, 2011 (“Request #2”), the ODNI “referred an unknown amount of CIA material to CIA for review and direct response to NSC.” [2] See id. ¶¶ 222, 225. On March 13, 2012 and March 15, 2012, the CIA “withheld all information” from Request #1 and Request #2, respectively, citing FOIA Exemptions 3 and 5. ¶¶ 229–30. NSC did not file an administrative appeal of these withholding determinations. Nevertheless, NSC claims that the CIA’s denial letters for Request #1 and Request #2 were “legally insufficient” to trigger an administrative appeal because they did not “provide an estimate of the volume of any denied *3 matter” pursuant to 5 U.S.C. § 552(a)(6)(F). FAC ¶¶ 231–32. Therefore, NSC alleges that it has constructively exhausted its administrative remedies because “twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA.” See id. ¶ 232.
On September 6, 2011, plaintiff Kathryn Sack submitted a FOIA request (“Request #3”) that sought “thirty-two specified documents currently published in the CIA Records Search Tool (‘CREST’).” Id. ¶ 177. This request specified that “‘[r]ecords which are currently published in CREST in redacted form should be reviewed for full release under FOIA,’” and requested a public-interest fee waiver and production of any responsive records in an electronic format. See id. On September 13, 2011, the CIA “released paper copies of the redacted versions of the thirty-two documents which were published in CREST” and also “denied Sack’s request for a public interest fee waiver and assessed a duplication fee of $13, stating that there could be no public interest in releasing records which were already published in CREST.” Id. ¶ 178. On September 26, 2011, Sack “[administratively] appealed all redactions in the thirty-two documents” and the fee-waiver denial. Id. ¶ 179. On October 18, 2011, the CIA responded to Sack’s administrative appeal, stating that “[i]t was not clear that you were requesting a re-review of these documents,” though “we can open a new request to address this re-review if you wish.” Id. ¶ 180. The CIA’s response also stated that “you were not given appeal rights in the earlier response, and, as such, we cannot accept your appeal.” The plaintiffs challenge this response by the CIA, both because “Sack has a legal right . . . to obtain the information she seeks” and because “Sack has a legal right . . . to receive a public interest fee waiver.” See id. ¶¶ 181–82. Specifically, the plaintiffs allege that “there is no legal basis for CIA to simply provide records which had been previously processed when Sack explicitly specified in her initial request letter *4 that all records currently published in redacted form were to be re-processed for release under FOIA.” Id. ¶ 181. [3]
Also on September 6, 2011, NSC submitted a FOIA request to the CIA (“Request #4”) that was related to one of its previous requests. id. ¶ 161. In particular, the CIA’s response to a prior FOIA request had stated that review of certain documents “would impose an excessive and unreasonable burden on the [CIA], and pursuant to relevant precedent, we must decline to process such requests.’” See id. ¶ 160. Hence, Request #4 requested “records pertaining to the ‘relevant precedent’ to which this letter referred.” Id. ¶ 161. On October 21, 2011, the CIA “released one document comprised solely of the paragraph which had been used in the response letter to” the previous request and “did not list the records withheld in their entirety.” See id. ¶ 163. On December 29, 2011, NSC sent a letter to the CIA, requesting a list that “identifies the records being withheld and describes the reasons for their withholding in general terms.” Id. ¶ 164. NSC’s letter further stated that “[u]ntil we obtain such a list, we do not consider your response to constitute a proper final determination response and reject your appeal deadline.” Similar to its challenge to Request #1 and Request #2, discussed above, NSC contends that it constructively exhausted its administrative remedies regarding Request #4 because “twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA.” See id. ¶ 167.
On May 4, 2010, NSC submitted a FOIA request to the CIA for, inter alia , “the 15 FOIA requests received by the [CIA] during Fiscal Year 2008 that were classified as full denials because the Records were not Reasonably Described in” the CIA’s 2008 Annual Report. id. ¶ 184 (internal quotation marks omitted); see also Defs.’ Ex. C at 1, ECF No. 14-3. That same *5 day, NSC also submitted a similar FOIA request to the CIA that sought, inter alia , “[t]he 290 FOIA requests received by the CIA during Fiscal Year 2008 that were classified as full denials because they were considered Improper FOIA Requests for Other Reasons” in the CIA’s 2008 Annual Report. Defs.’ Ex. D at 1 (internal quotation marks omitted), ECF No. 14-4; FAC ¶ 187; see also Decl. of Martha Lutz ¶ 65, Nat’l Sec. Counselors v. CIA , No. 11-444 (D.D.C. Dec. 20, 2011). NSC agreed to combine these two requests into one, and the CIA provided NSC with records responsive to the merged request on August 31, 2011. FAC ¶¶ 186, 188. NSC alleges that “it is not possible to discern from the records themselves which records are responsive to which request,” and so NSC “asked CIA several times to identify the fifteen records which were responsive to” the first request, but “CIA refused to provide any clarification.” See id. ¶ 189. NSC therefore submitted a new FOIA request on October 12, 2011 (“Request #5”), which sought “the first page of the initial response letter for each of the fifteen FOIA requests identified in” its first May 4, 2010 FOIA request. ¶ 190. The CIA nevertheless “refused to process the request, stating that it was a duplicate of one of the line items of the merged [r]equest.” See id. ¶ 191. NSC attempted to appeal this determination by the CIA not to process Request #5, but the CIA “refused to accept NSC’s appeal” because the request was never processed. See id. ¶¶ 192–93. NSC challenges the CIA’s response to Request #5 and asserts that it has a legal right to the information sought in that request. See id. ¶ 194.
B. Alleged Policies or Practices Violating the FOIA The plaintiffs also challenge what they allege are four separate policies or practices of the CIA that constitute ongoing violations of the FOIA. The Court will summarize below the plaintiffs’ allegations regarding each claimed policy or practice.
1. Policy or Practice of Requiring Commitment to Pay Applicable Fees Between September 6, 2011 and September 14, 2011, NSC submitted five FOIA requests to the CIA. FAC ¶ 69. In response to each of these requests, the CIA notified NSC that “[w]e determined that your request falls into the ‘all other’ fee category, which may require you to pay chаrges to cover the cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time, which are free.” Id. ¶ 70. The CIA’s letters also stated that “we will need your commitment to pay all applicable fees before we can proceed with our searches.” Id. NSC sought clarification of these letters, asking the CIA, via letter on October 4, 2011, to “[p]lease confirm that you mean that you will conduct the first two hours of search regardless of our promise to pay, since we are entitled to that by law, and that you will not conduct any further searches absent a promise to pay.” Id. ¶ 71 (emphasis omitted). The CIA responded to NSC’s request on October 7, 2011, stating that “it is not possible to limit our searches for records on a particular topic to precisely two hours” since “some of the searches are automated, whereas others are not,” and therefore “the total search effort cannot be limited in an arbitrary way, such as the maximum amount that can be performed as you requested.” ¶ 72. In light of this correspondence, the plaintiffs allege that “CIA’s refusal to provide two free hours of search time to ‘all other’ requesters who refuse to pay any fees represents an ongoing policy, practice, or Standard Operating Procedure (‘SOP’),” which “is in violation of FOIA.” See id. ¶¶ 74–75. [4]
*7 2. Policy or Practice of Charging Search Fees for Automated Searches The second alleged policy or practice of the CIA challenged by the plaintiffs is based on the same facts just discussed. Specifically, the plaintiffs point to the language in the CIA’s October 7, 2011 response letter, which stated that “it is not possible to limit our searches for records on a particular topic to precisely two hours” since “some of the searches are automated, whereas others are not.” Id . ¶ 72. From this language the plaintiffs clаim that “[t]he fact that some of the searches are automated has no bearing on the length of the search for fee purposes unless CIA counts the time that a computer takes to perform an automated search with no human participation as part of the search time.” id. ¶ 80. Accordingly, the plaintiffs allege that “CIA’s reference to automated searches indicates an ongoing policy, practice, or SOP,” and “[a] policy, practice, or SOP of counting for fee purposes the time spent by a computer performing an automated search with no human participation is in violation of FOIA.” See id. ¶¶ 81–82.
3. Policy or Practice of Refusing to Provide Electronic Records The third alleged CIA policy or practice challenged by the plaintiffs relates to the format in which records are produced to FOIA requesters. The plaintiffs allege that they “have never received electronic records from CIA in response to FOIA requests.” Id. ¶ 134. In this regard, the plaintiffs also allege that “CIA admits that it has a blanket policy of considering every record ‘not readily reproducible in electronic format’ with the exception of a select few categories of frequently requested records.” Id. ¶ 135. According to the plaintiffs, “CIA defends this policy with the argument that its FOIA processing software is only located on its classified computer system, and that after processing records for release using that software it is unduly burdensome to then remove the records from the classified system and burn them to digital media.” [5] The *8 plaintiffs thus allege that “[a] policy, practice, or SOP of refusing to provide any releasable records in electronic format (with the exception of a select few predefined categories) is in violation of FOIA.” See id. ¶ 136 (emphasis in original).
4. Policy or Practice of Invoking FOIA Exemption 3 Without Authorization
The final alleged CIA policy or practice challenged by the plaintiffs has to do with the CIA’s authority to invoke the National Security Act, 50 U.S.C. §§ 401, et seq. , as a withholding statute under FOIA Exemption 3, 5 U.S.C. § 552(b)(3). “Prior to 2004, the National Security Act vested the Director of Central Intelligence (‘DCI’) with the authority to protect intelligence sources and methods.” FAC ¶ 208. According to the plaintiffs, “[i]n 2004, the Intelligence Reform and Terrorism Prevention Act (‘IRTPA’) transferred this authority to make such a decision from the DCI to the newly-created [Director of National Intelligence, or ‘DNI’].” ¶ 209. Thus, the plaintiffs allege that, after 2004, the CIA would only have the authority to invoke the “protect intelligence sources and methods” clause of the National Security Act as an Exemption (b)(3) withholding statute in one of two instances: “(1) it consulted with ODNI in each instance and ODNI authorized each invocation; or (2) ODNI authorized CIA to independently make such invocations.” See id. ¶ 210. The plaintiffs claim that, although “[s]ince 2004, CIA has repeatedly invoked the ‘protect intelligence sources and methods’ clause of the National Security Act” pursuant to Exemption 3, “CIA possesses no independent authority to withhold records from FOIA requests under Exemption (b)(3) to protect intelligence sources and methods.” See id. ¶¶ 211, 214. This is so because, according to the plaintiffs, “the DNI has not authorized CIA to independently invoke the National Security Act as an Exemption (b)(3) withholding statute,” and therefore “every time CIA invokes the ‘intelligence sources and methods’ language of the National Security Act as an Exemption (b)(3) withholding statute at the *9 administrative stage, it is doing so without authorization from the agency vested with that authority.” Id. ¶¶ 215–16. Based on these allegations, the plaintiffs claim that “[a] policy, practice, or SOP of invoking an Exemption (b)(3) withholding statute without proper authorization is in violation of FOIA.” ¶ 217.
With respect to each of these four alleged policies or practices, the plaintiffs allege that they “stand to continue to be harmed by this ongoing policy in the future, as they regularly file FOIA requests with CIA and will continue to do so in the future.” See id. ¶¶ 137, 218; see also id. ¶¶ 76, 83 (making same allegations with respect to NSC only). The plaintiffs also allege in each of these policy-or-practice claims that they are “entitled to relief in the form of a declaratory order that CIA is in violation of its statutory responsibilities under FOIA and an injunction compelling CIA” to cease each unlawful policy or practice. See id. ¶¶ 77, 84, 138, 219.
C. CIA’s Rule Regarding Fees Charged to MDR Requesters
The final claim that the CIA has moved to dismiss is the plaintiffs’ challenge, under the
APA, to the CIA’s decision to promulgate a final rule without notice-and-comment procedures.
On June 16, 1997 the CIA promulgated an “interim rule” to “implement its obligations under the
[FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to
classification challenges by authorized holders, requests for mandatory declassification review,
and access by historical researchers.” Freedom of Information Act; Privacy Act; and
Executive Order 12958; Implementation (“Interim Rule”), 62 Fed. Reg. 32,479 (June 16, 1997)
(codified as amended at 32 C.F.R. pts. 1900–01, 1907–09);
see also
FAC ¶ 20.
[6]
*10
Two sections of this 1997 Interim Rule described the CIA’s fee structure for FOIA and
MDR requests. The section regarding fees for FOIA requests stated, in pertinent part, that
“[r]ecords will be furnished without charge or at a reduced rate whenever the Agency
determines,”
inter alia
, that “it is in the public interest because it is likely to contribute
significantly to the public understanding of the operations or activities of the United States
Government and is not primarily in the commercial interest of the requester.” Interim Rule,
The plaintiffs allege that “prior to 23 September 2011, CIA rarely if ever charged fees to process MDR requests” and “[o]f the multiple frequent MDR requesters surveyed by Plaintiffs, none recalled ever being charged by CIA for MDR requests.” FAC ¶ 23. On September 23, 2011, however, the CIA published in the Federal Register a final rule that amended the CIA’s *11 regulations regarding fees for MDR requests. See Mandatory Declassification Review (“Final Rule”), 76 Fed. Reg. 59,032 (Sept. 23, 2011) (codified at 32 C.F.R. pt. 1908). The Final Rule added 32 C.F.R. § 1908.14, which sets forth several provisions governing whether and how fees are assessed for MDR requests. In relevant part, the new provisions (1) assess reproduction fees for all MDR requests, including a fee of fifty cents per page, $10 per CD, and a minimum fee of $15 per request for reproductions; and (2) assess search and review fees of between $20 and $72 per hour for all MDR requests, which are due “even if our search locates no responsive information or some or all of the responsive information must be withheld under applicable authority.” 32 C.F.R. § 1908.14; see also FAC ¶ 25.
Since the passage of this rule, the plaintiffs allege that “CIA began responding to MDR requests with demands that requesters commit to pay all search, review, and duplication fees at the new fee schedule described in 32 C.F.R. § 1908.14.” FAC ¶ 26. Specifically, three of the plaintiffs (NSC, Stein, and Mark Zaid) each submitted one or more MDR requests to the CIA following promulgation of the Final Rule, and the CIA responded to each request by asking the requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in abeyance until such a commitment was given. id. ¶¶ 27–35. Based on these allegations, the plaintiffs claim that “CIA violated the APA by рublishing a Final Rule substantially altering [the former 32 C.F.R. § 1908.13] without first using a Proposed Rule subject to notice and comment.” Id. ¶ 38. The plaintiffs further allege that the CIA’s Final Rule “does not meet the narrow requirements for an interpretive rule that is exempt from the notice and comment requirement.” To remedy this alleged violation, the plaintiffs seek, inter alia , vacatur of the Final Rule. See id. ¶ 39.
II. LEGAL STANDARDS
A. Subject-Matter Jurisdiction
When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1), a court has “an affirmative obligation to consider whether the constitutional and
statutory authority exist” for it to hear the case.
James Madison Ltd. v. Ludwig
,
B. Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough
facts to state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims
across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly
,
C. FOIA
Congress enacted the FOIA to promote transparency across the government. 5
U.S.C. § 552;
Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech.
, 775 F. Supp.
2d 174, 179 (D.D.C. 2011). The Supreme Court has explained that the FOIA is “a means for
citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a
convenient formalism. It defines a structural necessity in a real democracy.”
Nat’l Archives &
Records Admin. v. Favish
,
This strong interest in transparency must be tempered, however, by the “legitimate
governmental and private interests [that] could be harmed by release of certain types of
information.”
United Techs. Corp. v. U.S. Dep’t of Def.
,
The D.C. Circuit has also recognized that, separate from claims seeking relief for specific
requests made under the FOIA, requesting parties may also assert a “claim that an agency
policy
or practice
will impair the party’s lawful access to information in the future.”
Payne Enters.,
Inc. v. United States
,
III. DISCUSSION
The defendants raise two grounds in support of their partial motion to dismiss.
[7]
First,
they contend that the plaintiffs lack Article III standing to sue regarding each of the plaintiffs’
four policy-or-practice claims (Counts Five, Six, Fifteen, and Twenty-Five). Second, the
defendants argue that three of the plaintiffs’ claims (Counts Five, Nineteen, and Twenty-Six (in
part)) must be dismissed for failure to exhaust administrative remedies. Finally, the defendants
contend that seven of the plaintiffs’ claims (Counts One, Five, Six, Fifteen, Twenty-One,
Twenty-Two, and Twenty-Five) must be dismissed for failure to state a claim upon which relief
may be granted. When a federal court is faced with both a challenge to its Article III jurisdiction
to hear certain claim as well as a challenge to the merits of those claims, the court must address
the jurisdictional question before addressing any question of the merits.
See Steel Co. v. Citizens
for a Better Env’t
,
A. Standing
Article III of the United States Constitution limits the federal judicial power to the
resolution of “Cases” and “Controversies.” U.S. C ONST . art. III, § 2. “In limiting the judicial
power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional
role of Anglo-American courts, which is to redress or prevent actual or imminently threatened
injury to persons caused by private or official violation of law.”
Summers v. Earth Island Inst.
,
As the Supreme Court has explained, “the irreducible constitutional minimum of standing
contains three elements.”
Lujan v. Defenders of Wildlife
,
Moreover, when a plaintiff seeks prospective declaratory or injunctive relief, allegations
of past harms are insufficient.
See, e.g.
,
Dearth v. Holder
,
In the instant action, the CIA argues that the plaintiffs lack standing to pursue their
Payne
policy-or-practice claims because “[n]one of the plaintiffs allege any specific plans to file FOIA
requests in the future that would implicate the alleged policies and practices they seek to
challenge.” Mem. in Supp. of Defs.’ Partial Mot. to Dismiss (“Defs.’ Mem.”) at 7–8 (emphasis
omitted), ECF No. 14. Instead, the CIA contends, the plaintiffs’ “claims of future injury rest
entirely on the bare allegation that they are frequent FOIA requesters.” at 8. According to
the CIA, “[p]laintiffs’ status as frequent FOIA requesters cannot transform speculation and
conjecture into cases or controversies,” and thus this Court lacks jurisdiction to entertain the
plaintiffs’ policy-or-practice claims.
See id.
at 10. The plaintiffs’ response to these arguments is
quite cursory. In addition to spending several pages attempting to distinguish various precedents
from this Circuit cited by the CIA, which the Court discusses further below, the plaintiffs simply
*18
state, without further elaboration or support, that they “have made the same assertions that Judge
Kennedy found sufficient in”
Citizens for Responsibility & Ethics in Washington v. Executive
Office of the President
(“
CREW/EOP
”),
To put the parties’ arguments in context, the Court will briefly discuss the handful of
cases from this Circuit that the parties discuss in their briefing, both for and against standing. In
addition to
CREW/EOP
, the parties focus their attention on three cases:
Quick v. U.S.
Department of Commerce, National Institute of Standards & Technology
,
First, the
Quick
case stands for the uncontroversial proposition that, even assuming that
an alleged policy or practice exists and some FOIA requesters may have been subject to that
policy, FOIA plaintiffs must establish that they have personally been subject to the alleged
policy to have standing to challenge it.
See Quick
,
The plaintiffs’ contention that they “have made the same assertions that Judge Kennedy
found sufficient in
CREW v. EOP
,”
see
Pls.’ Opp’n at 19, however, is unsupported by the
allegations in the First Amended Complaint or any other materials submitted by the plaintiffs.
Unlike the plaintiff in
CREW/EOP
, the plaintiffs in the instant action have not alleged or
demonstrated that “they have FOIA requests for [records likely to implicate the challenged
policies] currently pending with the [allegedly offending agency].”
CREW/EOP
, 587 F.
Supp. 2d at 60–61. Indeed, the instant action is also readily distinguishable from the related
cases analyzed by this Court in
National Security Counselors v. CIA
,
By contrast, in this case, the plaintiffs have merely alleged that they “stand to continue to
be harmed” because “they regularly file FOIA requests with CIA and will continue to do so in
the future.” FAC ¶ 137;
see also id.
¶ 76 (“As a frequent FOIA requester to CIA, NSC stands to
continue to be harmed by this ongoing practice in the future.”);
id.
¶ 83 (“NSC stands to continue
to be harmed by this ongoing policy in the future, as it regularly files FOIA requests with CIA
and will continue to do so in the future.”);
id.
¶ 218 (“Plaintiffs stand to continue to be harmed
by this ongoing policy in the future, as they regularly file FOIA requests with CIA (many of
which CIA denies citing this ‘intelligence sources and methods’ language) and will continue to
do so in the future.”). These general statements about a “regular” course of conduct and an
expressed intention to “continue to do so in the future” do not establish the same concrete
likelihood of injury that emanates from allegations of specific, pending FOIA requests that are
likely to be subject to an agency’s challenged policies. This concrete likelihood of future injury
was extant in the cases discussed above where standing was found,
see Nat’l Sec. Counselors
,
B. Exhaustion of Administrative Remedies
“‘Exhaustion of administrative remedies is generally required before filing in federal
court so that the agency has an opportunity to exercise its discretion and expertise on the matter
and to make a factual record to support its decision.’”
Hidalgo v. FBI
,
Under the FOIA, there are two ways for a requester to exhaust administrative remedies:
actual exhaustion and constructive exhaustion. Actual exhaustion is required when an agency
responds to a request and determines, within twenty working days, whether and how to comply
with that request, and in that situation a requester dissatisfied with the agency’s determination
must administratively appeal it to the head of the agency before filing suit. 5 U.S.C.
§ 552(a)(6)(A);
see also Oglesby
,
In the instant case, the CIA argues that NSC failed to exhaust its administrative remedies in connection with the FOIA request at issue in Count Nineteen and two of the three FOIA requests at issue in Count Twenty-Six of the First Amended Complaint. [10] See Defs.’ Mem. at 16–20. It is apparent from the face of the First Amended Complaint that NSC did not file an administrative appeal of these three FOIA requests. See FAC ¶¶ 164–66, 229–31. Instead, NSC alleges that it constructively exhausted its administrative remedies. See id. ¶¶ 167, 232. Specifically, NSC contends that it was not required to file an administrative appeal for these three FOIA requests because the CIA’s denial letter “did not meet the procedural requirements of 5 U.S.C. § 552(a)(6)(F),” see Pls.’ Opp’n at 38, which states:
In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.
5 U.S.C. § 552(a)(6)(F). Since the CIA’s denial letters did not contain the volume estimate set forth in this provision, the plaintiffs allege that those denial letters were “legally insufficient” and did not trigger the requirement to file an administrative appeal. See FAC ¶¶ 166, 231; Pls.’ Opp’n at 38–40. Thus, the plaintiffs’ contention that NSC constructively exhausted its administrative remedies is premised on the allegation that “twenty working days [had] elapsed without a substantive determination by CIA which [met] the volume estimate requirement of FOIA.” FAC ¶¶ 167, 232.
*25 At first blush, the D.C. Circuit’s holding in Oglesby appears to foreclose the plaintiff’s argument out of hand. As discussed above, Oglesby held that:
A response is sufficient for purposes of requiring an administrative appeal if it includes: the agency’s determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse.
Oglesby
,
At the outset, the Court observes that the narrow question presented is whether an agency’s response to a FOIA request which lacks a volume estimate requires actual exhaustion or instead permits constructive exhaustion. With that in mind, the Court need only look to the plain language of the FOIA, and in particular the FOIA’s requirements for resorting to constructive exhaustion, to resolve the issue. The FOIA’s constructive exhaustion provision states that “[a]ny person making a request to any agency for records under [5 U.S.C.
§§ 552(a)(1)–(3)] shall be deemed to have exhausted his administrative remedies with respect to
such request if the agency fails to comply with the applicable time limit provisions of this
paragraph.” 5 U.S.C. § 552(a)(6)(C)(i). This provision’s reference to “the applicable time limit
provisions of this paragraph” is clearly a reference to the time limits contained in 5 U.S.C.
§ 552(a)(6)(A). Indeed, 5 U.S.C. § 552(a)(6)—the “paragraph” referred to in 5 U.S.C.
§ 552(a)(6)(C)(i)—only contains one set of “time limit provisions,” and those are the time limits
contained in 5 U.S.C. § 552(a)(6)(A). Therefore, in order to foreclose constructive exhaustion
*26
and require a requester to file an administrative appeal, an agency need only satisfy the
requirements of 5 U.S.C. § 552(a)(6)(A), which is precisely what the D.C. Circuit held in
Oglesby
.
The plaintiffs resist this conclusion by contending that “
Oglesby
is itself contradicted by
binding Supreme Court precedent.” Pls.’ Opp’n at 39. In support of this argument, the plaintiffs
cite the Supreme Court’s recent decision in
Schindler Elevator Corp. v. United States ex rel.
Kirk
,
The Court does not read this statement from
Schindler Elevator
as a holding that a
volume estimate of withheld material is required before a FOIA requester’s obligation to file an
administrative appeal is triggered. It cannot be disputed, and the CIA does not dispute, that an
agency is required to provide an estimate of the volume of any withheld material “[i]n denying
any request for records, in whole or in part,”
see
5 U.S.C. § 552(a)(6)(F);
see also, e.g.
,
Mobley
v. Dep’t of Justice
,
Having concluded that NSC failed to exhaust its administrative remedies, the Court must
consider whether permitting NSC now to challenge the CIA’s responses to these three FOIA
requests would undermine either the “particular administrative scheme” or the “purposes of
exhaustion.”
See Hidalgo
,
The D.C. Circuit has stated that non-jurisdictional exhaustion serves three primary
purposes: “giving agencies the opportunity to correct their own errors, affording parties and
courts the benefits of agencies’ expertise, [and] compiling a record adequate for judicial review.”
Avocados Plus Inc. v. Veneman
,
Two cases from this Circuit—
Hidalgo v. FBI
and
Wilbur v. CIA
—elucidate the concerns
at play in the doctrine of FOIA administrative exhaustion. In
Hidalgo
, a prisoner filed a FOIA
request seeking records related to an FBI informant who had helped the government prosecute
him.
Hidalgo
,
By contrast,
Wilbur
involved a scenario where, although the plaintiff’s filing of his FOIA
request and the CIA’s denial of that request both occurred in 1994, the plaintiff did not file an
administrative appeal of the denial until January 1999.
See Wilbur
,
From Wilbur and Hidalgo , a clear principle emerges: Failure to exhaust administrative remedies is not a mere technicality, and a court must decline to decide the merits of an unexhausted FOIA claim when the plaintiff fails to comply with procedures for administrative review, denying the agency an opportunity to review its initial determination, apply its expertise, *31 correct any errors, and create an ample record in the process. This principle applies with full force to this case. With respect to the three unexhausted FOIA requests in Counts Nineteen and Twenty-Six, the CIA has had no opportunity to develop an administrative record regarding the aspects of the CIA’s responses that the plaintiffs are challenging, let alone an opportunity to correct any errors that may have been the source of the plaintiffs’ grievances. This is why administrative exhaustion is particularly important in FOIA cases, since there are a number of areas in which a requester can challenge an agency’s response, including the validity of its claimed exemptions, the adequacy of its search efforts, and the correctness of its refusal to provide a fee-waiver request. Thus, requiring a FOIA requester to exhaust administrative remedies crystalizes the scope of the requester’s challenge in a way that puts the agency on notice of what aspects of the agency’s response are contested. None of that was able to oсcur in this case due to NSC’s failure to file an administrative appeal, despite being notified of its right to do so. Therefore, the Court concludes that NSC’s failure to exhaust its administrative remedies undermines the purposes of administrative exhaustion. As a result, the Court will grant the CIA’s motion to dismiss the plaintiffs’ challenges regarding the FOIA request at issue in Count Nineteen and two of the three FOIA requests at issue in Count Twenty-Six of the First Amended Complaint. [13]
*32 C. Failure to State a Claim
Finally, the Court will address the CIA’s arguments for dismissing Counts One, Twenty- One, and Twenty-Two of the First Amended Complaint for failure to state a claim upon which relief may be granted. The Court will begin by addressing Counts Twenty-One and Twenty-Two before moving to the plaintiffs’ APA challenge contained in Count One.
1. County Twenty-One: Construction Plaintiffs’ FOIA Request The CIA moves to dismiss County Twenty-One of the First Amended Complaint, which challenges the CIA’s response to Request #3 discussed above, which sought “thirty-two specified documents currently published in the CIA Records Search Tool (‘CREST’)” and asked that “‘[r]ecords which are currently published in CREST in redacted form should be reviewed for full release under FOIA.’” FAC ¶ 177. In response to this request, the CIA “released paper copies of the redacted versions of the thirty-two documents which were published in CREST.” Id. After plaintiff Sack “[administratively] appealed all redactions in the thirty-two documents,” as well as the denial of her fee-waiver request, the CIA responded by refusing to accept the appeal, stating that “[i]t was not clear you were requesting a re-review of these documents.” ¶¶ 179–80. The CIA argues that this claim should be “dismissed because the CIA’s interpretation of plaintiff’s request for previously released documents was reasonable and because Ms. Sack was not entitled to a waiver of the assessed duplication costs.” Defs.’ Mem. at 32. The plaintiffs argue, however, that “CIA’s interpretation was patently unreasonable” because Sack’s request “specified that she wanted any redacted records to be reviewed for full release and did not want CIA to simply provide documents in the redacted form in which they were published in CREST.” Pls.’ Opp’n at 41.
The D.C. Circuit has established that an agency “has a duty to construe a FOIA request
liberally,”
Nation Magazine v. U.S. Customs Serv.
,
Thus, the CIA’s motion to dismiss Count Twenty-One boils down to whether or not the CIA reasonably interpreted the scope of plaintiff Sack’s FOIA request. The Court, however, cannot conclude that the CIA’s interpretation of Ms. Sack’s FOIA request was reasonable as a matter of law. The CIA focuses its reasonableness argument on the first sentence of the FOIA request, which asked for “copies of the attached thirty-two documents in the [CIA] CREST system .” See Defs.’ Mem. at 33 (emphasis in original) (quoting Defs.’ Ex. A at 1, ECF No. 14- 1). In light of this one sentence, the CIA contends that “it was faced with a clear request for ‘copies’ of ‘thirty two documents’ listed in the ‘CREST system.’” The CIA gives short *34 shrift, however, to the remaining sentences of the opening paragraph of Ms. Sack’s FOIA request. In particular, the CIA selectively omits the sentence of the FOIA request, which stated that “records which are currently published in CREST in redacted form should be reviewed for full release under FOIA.” Defs.’ Ex. A at 1. [14] The CIA attempts to minimize this critical contextual sentence by arguing that “plaintiff’s request was internally contradictory and emphasized the previously released information database,” and therefore “the CIA reasonably construed it to be a request for copies of all of the identified documents.” Defs.’ Reply in Supp. of Partial Mot. to Dismiss (“Defs.’ Reply”) at 21, ECF No. 23.
The CIA’s arguments, however, are unpersuasive. It is true that Ms. Sack’s FOIA
request was not a model of clarity. If she were seeking a re-review of the CREST documents at
issue, she should have ideally stated that she was seeking
unredacted
copies of those documents,
rather than only saying she was seeking “copies.” In fact, if all Ms. Sack had said in her FOIA
request were that she was seeking “copies” of the specified CREST documents, the CIA’s
construction of her request as one for redacted, previously released versions of the specified
records would have been a reasonable one. Yet, that is
not
all that Ms. Sack said in her request.
Rather, she clarified what she meant by “copies” in the very same paragraph, stating that any
redacted versions of the requested records “should be reviewed
for full release
.” Defs.’ Ex. A at
1 (emphasis added).
[15]
It was unreasonable for the CIA to ignore such clear instructions
*35
conveying the intended scope of a FOIA request, at least insofar as those instructions were
contained within the four corners of the request itself.
See Kowalczyk v. Dep’t of Justice
, 73
F.3d 386, 389 (D.C. Cir. 1996) (holding that agencies must follow “clear and certain” leads for
responsive records that are contained within “the four corners of the request”). Indeed, cases
within this Circuit have often disapproved of agencies narrowing the scope of a FOIA request to
exclude materials reasonably within the description provided by the requester.
See, e.g.
,
LaCedra
,
2. County Twenty-Two: Producing Duplicative Records Next, the CIA moves to dismiss Count Twenty-Two of the First Amended Complaint.
That count, as discussed above, challenges the CIA’s response to Request #5, which sought “the first page of the initial response letter for each of the fifteen FOIA requests identified” in a prior FOIA request. FAC ¶ 190. NSC submitted Request #5 because it previously agreed to combine two prior FOIA requests, which sought two separate categories of records. The first category consisted of fifteen FOIA requests from 2008 that were denied because they did not “reasonably describe[]” the records sought, while the second category consisted of 290 FOIA requests from 2008 that were deemed improper for other reasons. Defs.’ Mem. at 36. The *36 plaintiffs allege that “it is not possible to discern from the records themselves which records are responsive to which request,” and after informally seeking clarification from the CIA on this issue, NSC filed Request #5 to determine definitively which records were responsive to which request. See FAC ¶¶ 189–90. There is no dispute that the records sought in Request #5 are duplicative of records already produced by the CIA to NSC, and it appears that the only purpose for submitting Request #5 was to “identify which of the hundreds of records responsive to [the previous combined FOIA request] were the fifteen requests specifically mentioned in the 2008 Annual Report.” id. ¶ 194.
The CIA moves for dismissal of County Twenty-Two, contending that “plaintiff filed a
deliberately redundant request with the intent of forcing the CIA to answer its question,” and
“[t]he CIA is not obligated to produce redundant records to the same requester.” Defs.’ Mem. at
35, 37 (citing
Weisberg v. U.S. Dep’t of Justice
(“
Weisberg II
”),
The Court agrees with the plaintiffs on this issue. The CIA is correct that the FOIA does
not obligate agencies to create records,
see, e.g.
,
ACLU v. U.S. Dep’t of Justice
,
§ 552(a)(3)(A), subject of course to the exemptions contained in 5 U.S.C. § 552(b). Thus, absent
some contention that the production of redundant records to the same requester would run afoul
of the FOIA by imposing an undue burden upon the CIA or requiring the CIA to create records,
the Court concludes that the plaintiffs’ claim in County Twenty-Two regarding the CIA’s
response to Request #5 can go forward. The Court finds nothing in the FOIA that would
foreclose an individual from seeking the production of records already disclosed to him,
particularly in a situation like the instant case where an individual seeks redundant documents in
order to obtain a new piece of information.
[17]
In such a situation, the agency is free to charge the
required to attempt to recover certain deleted electronic files in response to a FOIA request. Thus, its statement that
“when the data retrieved would only be cumulative of items already produced, attempting to perform this type of
data retrieval is unnecessary” was in the context of the adequacy of an agency’s
search
, not an agency’s obligation
to
produce
duplicative records that had already been located.
See id.
In
Stewart v. U.S. Department of the Interior
,
[17] A number of cases from this Circuit have recognized the closely related principle that FOIA requesters may
submit entirely duplicative requests in order to cure certain defects in their original requests.
See, e.g.
,
Spannaus
,
3. Count One: Whether Notice-and-Comment Procedures Were Required to Change the CIA’s MDR Fee Structure The final claim at issue in the defendants’ motion to dismiss is Count One, which is brought pursuant to the APA and therefore stands aрart from the preceding analysis. In Count One, the plaintiffs allege that the CIA violated the APA by promulgating a final rule, which modified the CIA’s structure for charging fees associated with MDR requests, without first making the rule the subject of notice-and comment procedures. FAC ¶¶ 20–39. The CIA moves to dismiss this claim, contending that “[t]he final rule issued by the CIA does not violate the APA because it is a ‘rule of agency procedure and interpretation’ not subject to the notice and comment requirements.” Defs.’ Mem. at 1. In particular, the CIA argues that the Final Rule “is not a ‘legislative rule’ subject to notice and comment,” but is instead a “rule[] of agency organization, procedure, or practice.” id. at 3; see also 5 U.S.C. § 553(b). The plaintiffs contend, however, that the CIA’s Final Rule is a “legislative rule” because it (1) takes away their “right to receive preferential treatment as non-commercial requesters” and their “right to receive public interest fee waivers where appropriate,” and (2) “encoded the substantive value judgment that non-commercial requesters were no longer different from commercial requesters, with full knowledge that changing CIA’s longstanding practice in this manner would effectively remove non-commercial requesters’ ability to file MDR requests.” Pls.’ Opp’n at 9–10.
disposition of this case does not preclude plaintiff from resubmitting his request to [the agency] with the proper waiver . . . .”).
The APA generally requires that all “rule makings” be subject to the procedures outlined
in 5 U.S.C. § 553, which principally include (1) notice published in the
Federal Register
; and
(2) an opportunity for “interested persons” to “participate in the rule making through submission
of written data, views, or arguments.” 5 U.S.C. § 553.
[18]
These notice-and-comment
procedures, however, explicitly do not apply,
inter alia
, to “rules of agency organization,
procedure, or practice.”
See id.
§ 553(b). This statutory exception for procedural rules “was
provided to ensure that agencies retain latitude in organizing their internal operations.”
Batterton
v. Marshall
,
“Procedure and its оpposite, substance,” however, “are not talismanic labels or given
premises. Rather, they are legal conclusions which depend upon their settings for definition.”
Neighborhood TV Co. v. FCC
,
Cognizant of the statutory purposes underlying notice and comment, the D.C. Circuit has
held that the procedural rule exception’s “critical feature is that it covers agency actions that do
not themselves alter the rights or interests of the parties, although it may alter the manner in
which the parties present themselves or their viewpoints to the agency.”
Batterton
, 648 F.2d at
334. This articulation reflects an analysis that “is functional, not formal.”
See Chamber of
Commerce
,
From these broader themes, certain, more concrete, principles have emerged to guide the
application of the APA’s exemption for procedural rules. First, “[i]n determining whether a rule
is substantive, [a court] must look at [the rule’s] effect on those interests ultimately at stake in the
agency proceeding.”
Neighborhood TV
,
Another principle that has emerged in this Circuit to identify procedural rules is that,
although a procedural rule generally may not “encode[] a substantive value judgment or put[] a
stamp of approval or disapproval on a given type of behavior,”
see Bowen
,
a) Effect on Rights and Interests of MDR Requesters
With these principles in mind, the Court begins by considering whether the Final Rule
adversely affects “those interests ultimately at stake in the agency proceeding.”
Neighborhood TV
,
At the outset, the Court is skeptical whether either of the “rights” articulated by the
plaintiffs are, in fact, benefits that any individual was
entitled to
under the previous MDR fee
structure. The “preferential fee treatment” accorded to non-commercial requesters under the
previous MDR fee structure was dependent upon a requester establishing that, among other
things, “the information [sought] will be used in a specific scholarly or analytical work, will
contribute to the advancement of public knowledge, and will be disseminated to the general
public.”
See
32 C.F.R. § 1900.02(h)(2). Additionally, the availability of a fee waiver under the
previous MDR fee structure was a matter of agency discretion, just as it is in the context of the
FOIA.
See, e.g.
,
Campbell v. U.S. Dep’t of Justice
,
The plaintiffs refer to this interest in their opposition brief, stating that the Final Rule
“effectively remove[s] non-commercial requesters’ ability to file MDR requests” because “[t]he
sheer magnitude of review fees would be enough to effectively prevent non-commercial
requesters . . . from filing any but the simplest MDR requests.” Pls.’ Opp’n at 10. Executive
Order 13,526 provides that, under the MDR program “all information classified under this order
or predecessor orders
shall
be subject to a review for declassification” if a request meets certain
*45
conditions, and agencies conducting an MDR “
shall
declassify information that no longer meets
the standards for classification.” Exec. Order. 13,526 § 3.5(a), 3.5(c) (emphasis added). As
discussed above, these are substantive interests.
See, e.g.
,
Nat’l Ass’n of Waterfront Emp’rs v.
Solis
,
b) Substantive Value Judgment
The Court must also consider the related question of whether the CIA’s elimination of the
commercial/non-commercial distinction (for fee purposes) “encodes a substantive value
judgment or puts a stamp of approval or disapproval on a given type of behavior.”
Bowen
, 834
F.2d at 1047. On this score, the CIA maintains that “its MDR Program regulation does not make
value judgments or distinguish between relevant members of the public,” but rather “the fee
schedule distinguishes only on the basis of the costs incurred by the agency for reproduction,
search, and review to satisfy the request.” Defs.’ Mem. at 5–6. It argues that the distinctions
between commercial and non-commercial requesters “are simply not distinctions ‘on the basis of
dismiss.’”
See, e.g.
,
Freedom Watch, Inc. v. Obama
,
subject matter.’”
See
Defs.’ Reply at 5 (quoting
Public Citizen
,
It is certainly possible that the Final Rule’s intent, at a high enough level of generality,
was to “put[] a stamp of . . . disapproval” on the mission of non-commercial requesters,
see Bowen
,
Additionally, although the parties do not raise this point, the Court finds instructive a
parallel body of аuthority that addresses whether rules requiring the payment of court filing fees
are procedural or substantive. The Supreme Court has characterized uniform court filing fees to
initiate legal actions as “reasonable procedural requirements for triggering the right to an
adjudication.”
See Logan v. Zimmerman Brush Co.
,
It would make little sense to hold that the PLRA’s three-strikes provision is a mere
procedural rule but also hold that the Final Rule in the instant case is a substantive one. There is
*49
no meaningful practical distinction between an indigent prisoner being required to “pay his own
way like any other litigant,”
see id.
, and a non-commercial MDR requester being required to pay
the same search, review, and duplication fees as every other MDR requester. The contexts of the
two rules are certainly distinguishable—for example, the three-strikes provision was passed by
Congress, while the Final Rule was promulgated by an unelected agency—but their functional
effects are nearly identical.
See Chamber of Commerce
,
c) The Purposes of Requiring Notice and Comment
Finally, the Court must assess whether the Final Rule affects potential MDR requesters
“to a degree sufficient to implicate the policy interests animating notice-and-comment
rulemaking.”
See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.
(“
EPIC
”),
In evaluating whether the Final Rule likewise “has the hallmark of a substantive rule,”
see id.
, the “critical question is whether the agency action jeopardizes the rights and interests of
parties,”
Batterton
,
Even so, the Court concludes that, based on the allegations in the First Amended
Complaint, the principle articulated in
EPIC
is not applicable to the instant case. As discussed
above, the plaintiffs have not sufficiently alleged that the CIA’s Final Rule has any adverse
*51
effect on “those interests ultimately at stake in the agency proceeding,”
see id.
, and the plaintiffs
have likewise failed to allege that the Final Rule infringes upon any other important rights or
interests held by MDR requesters, such as personal privacy, freedom of speech, or the equal
protection of the law. Therefore, the Court concludes that the situation presented by this case is
one “where the policies promoted by public participation in rulemaking are outweighed by the
countervailing considerations of effectiveness, efficiency, expedition and reduction in expense.”
See Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp.
,
IV. CONCLUSION
As the foregoing discussion establishes, the defendants’ partial motion to dismiss will be granted in part and denied in part. The Court will grant the defendants’ motion as to the plaintiffs’ FOIA policy-or-practice claims in Counts Five, Six, Fifteen, and Twenty-Five because the plaintiffs lack standing to bring those claims, and thus the Court lacks subject-matter jurisdiction to hear them. Further, the Court grants the defendants’ motion, pursuant to Rule 12(b)(6), as to the plaintiffs’ claim in Counts Nineteen and as to two of the three FOIA requests challenged in Count Twenty-Six because the plaintiffs failed to exhaust their administrative remedies with respect to the three FOIA requests underlying those claims. Finally, the Court grants the defendants’ motion as to the plaintiffs’ claim in Count One challenging the CIA’s *52 promulgation of its Final Rule regarding its MDR fee structure without notice and comment because the plaintiffs have not sufficiently alleged that the Rule fails to qualify as a procedural rule, which is exempt from the notice-and-comment requirement. The Court denies the defendants’ motion, however, with respect to the plaintiffs’ claims in Counts Twenty-One and Twenty-Two because, in those counts, the plaintiffs have successfully pleaded claims for which relief may be granted.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 20, 2013
/s/ Beryl A. Howell BERYL A. HOWELL United States District Judge
Notes
[1] Nine of these fourteen specific requests are implicated, however, not because the plaintiffs challenge the CIA’s responses to the individual requests per se , but because the plaintiffs cite the CIA’s responses to the requests in order to allege the existence of a larger policy or practice within the CIA, see, e.g. , FAC ¶¶ 68–77 (Count Five), or to illuminate the context of their APA challenge to the CIA’s promulgation of a final rule regarding fees assessed to MDR requesters, see id. ¶¶ 19–39 (Count One). Only four of the counts challenged in the pending partial motion to dismiss are substantive challenges to the CIA’s responses to specific FOIA requests. id. ¶¶ 159–68 (Count Nineteen); id. ¶¶ 176–94 (Counts Twenty-One and Twenty-Two); id. ¶¶ 220–33 (Count Twenty-Six).
[2] The CIA assigned each of these referrals a unique request number, and thus the First Amended Complaint treats them as separate requests for information under the FOIA. FAC ¶¶ 222, 225.
[3] Similarly, the plaintiffs allege that “CIA’s denial of Sack’s request for a public interest fee waiver was predicated on an incorrect assumption that [Sack] had requested the thirty-two records as they were published in CREST .” FAC ¶ 182 (emphasis in original).
[4] The term “all other” FOIA requester is a reference to the CIA’s FOIA fee categories, and the “all other” category consists of all individuals who are not “commercial” requesters, “non-commercial educational or scientific institution” requesters, or “representatives of the news media” requesters, as those terms are defined in the CIA’s FOIA regulations. 32 C.F.R. § 1900.02(h).
[5] In support of this contention, the plaintiffs generally cite the CIA’s “filings in Case Nos. 11-443, 11-444.” FAC ¶ 135. Those two related cases are also currently pending before this Court.
[6] MDR requests are requests filed with government agencies that “seek[] declassification review of records” that are classified but that, according to the requesters, should now be available to the public. FAC ¶ 12; see also Exec. Order No. 13,526 § 3.5(a), 75 Fed. Reg. 707, 717–18 (Dec. 29, 2009) (“[A]ll information classified under this order or predecessor orders shall be subject to a review for declassification by the originating agency if, [ inter alia ,] . . . the request for a review describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort . . . .”).
[7] Although the pending partial motion to dismiss was filed by both defendants, the remaining claims challenged in that motion are limited to causes of action pled against the CIA. The defendants’ motion originally moved for dismissal of Count Twenty-Three of the First Amended Complaint, which is the only claim pled against the ODNI, for insufficient service of process. Defs.’ Partial Mot. to Dismiss at 1, ECF No. 14. The plaintiffs later effectuated service on ODNI, see Pls.’ Opp’n to Defs.’ Partial Mot. to Dismiss (“Pls.’ Opp’n”) at 2. n.2, ECF No. 18, which all parties agree renders the defendants’ challenge to Count Twenty-Three moot, see id. ; Defs.’ Reply in Supp. of Partial Mot. to Dismiss (“Defs.’ Reply”) at 1 n.1, ECF No. 23.
[8] The Court does not doubt that, as allegedly prolific FOIA requesters, the plaintiffs may very well have concrete
plans to file future FOIA requests, or may have FOIA requests currently pending with the CIA, which are likely to
implicate the policies or practices claimed in this action. Nevertheless, the burden of establishing jurisdiction lies
with the party who contends that jurisdiction exists,
Khadr
,
[9] Since the Court dismisses Counts Five, Six, Fifteen, and Twenty-Five for lack of standing, the Court need not address the CIA’s other arguments for dismissal of those claims. Defs.’ Mem. at 10–16, 20–32, 37–39 (arguing for dismissal of Counts Five, Six, Fifteen, and/or Twenty-Five on grounds of ripeness, availability of adequate remedies at law, and failure to state a claim).
[10] The two requests from Count Twenty-Six that the CIA contends were not exhausted are FOIA Request Nos. F- 2011-1891 and F-2012-318. FAC ¶¶ 229–32.
[11] In fact, cases from this Circuit have held that, even where an agency fails to comply with the time-limit provisions
of 5 U.S.C. § 552(a)(6), the agency can still require a requester to file an administrative appeal before filing suit if,
for example, the agency substantively responds to the request before the requester filed suit,
see, e.g.
,
Rossotti
, 326
F.3d at 1310;
Love v. FBI
,
[12] Indeed, an administrative appeal is the proper place to raise, in the first instance, a challenge to an agency’s failure to provide a volume estimate in accordance with 5 U.S.C. § 552(a)(6)(F), for it is through such an administrative appeal process that the agency has the opportunity to correct its errors before a federal case is made out of them.
[13] The plaintiffs contend, in a supplemental filing, that the CIA has improperly moved to dismiss for failure to
exhaust administrative remedies pursuant to Rule 12(b)(1), rather than Rule 12(b)(6). Pls.’ Supplemental Brief
Regarding Defs.’ Partial Mot. to Dismiss at 1, ECF No. 37. The plaintiffs are correct that failure to exhaust
administrative remedies is not a jurisdictional defect, but instead is grounds for dismissal under Rule 12(b)(6).
See,
e.g.
,
Hidalgo
,
[14] “While a court may not consider ‘matters outside the pleadings’ in evaluating a motion to dismiss under Rule
12(b)(6) without converting the motion to one for summary judgment under Rule 56, documents that are referenced
in, or are an integral part of, the complaint are deemed not ‘outside the pleadings.’”
Peters v. District of Columbia
,
[15] It is for this reason that the CIA is incorrect to assert that Ms. Sack’s request was “internally contradictory.” Defs.’ Reply at 21. Seeking “copies” of certain records, while also asking for any redacted copies to be “reviewed for full release,” is not internally inconsistent because “copies” and “unredacted copies” arе not mutually exclusive. The latter is merely a subset of the former.
[16] The cases that the CIA cites from other circuits are similarly inapposite. Defs.’ Mem. at 37; Defs.’ Reply at
22. In
CareToLive v. FDA
,
[18] The CIA only relies upon this procedural rule exception and does not rely on the APA’s other exceptions to
notice-and-comment procedures, such as the exceptions for “interpretative rules” or “general statements of policy.”
Defs.’ Reply at 3 (“[T]he question here is simply whether [the Final Rule] falls within the procedural rule
exception as construed by this Court’s binding precedent.”);
see also
5 U.S.C. § 553(b) (listing other exceptions).
For this reason, the plaintiffs’ arguments based on the D.C. Circuit’s four-factor test in
American Mining Congress
v. Mine Safety & Health Administration
,
[19]
See also Chamber of Commerce of U.S. v. U.S. Dep’t of Labor
,
[20] Although the plaintiff raises the argument regarding the effective preclusion of non-commercial MDR requests in its opposition brief, “‘it is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to