Muckrock, LLC v. CIA, No. 14-997, 2018 WL 1129713 (D.D.C. Feb. 28, 2018) (Jackson, J.)

Muckrock, LLC v. CIA, No. 14-997, 2018 WL 1129713 (D.D.C. Feb. 28, 2018) (Jackson, J.)

Re: Requests for records concerning procedures used when processing FOIA requests

Disposition: Granting in part and denying in part defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court finds that . . . the CIA has established that the agency conducted adequate searches for responsive records."  The court finds that "[w]hen an agency submits a declaration that both delineates search terms that were used and avers 'that all files likely to contain responsive materials (if such records exist) were searched[,]' . . . 'the burden shifts to the plaintiff to provide evidence sufficient to raise "substantial doubt" about the adequacy of the agency's search[.]'"  "Moreover, because a federal agency has 'discretion in crafting a list of search terms that they believe to be reasonably tailored to uncover documents responsive to the FOIA request[,]' it is not within the reviewing court's province to nitpick the agency's selection of search terms."  The court specifically notes that "CIA permitted subject matter experts within the Directorates to identify the search terms that they themselves deemed most likely to locate responsive records" and "it was these experts who ultimately selected the search terms that were used."  Responding to more of plaintiff's arguments, the court finds that "[w]hile the Court appreciates that [plaintiff] is 'a frequent FOIA requester' . . . and thus has a frame of reference that can facilitate many such "gotcha" comparisons, [defendant's] prior declaration [which plaintiff attempts to use to show a discrepancy in the search efforts] provides no basis for forestalling summary judgment" because, "with respect to the question at issue here, there is no apparent inconsistency between [defendant's] current representation and [its] prior one."  Finally, the court finds that "[plaintiff's] missing-documents argument . . . amounts to nothing more than a 'purely speculative claim[ ] about the existence and discoverability of other documents,' . . . an argument that has long been deemed insufficient to support the contention that an agency's search is inadequate under the FOIA[.]"
   
• Exemption 3:  The court holds that "the CIA has properly invoked FOIA Exemption 3 and the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) . . . to withhold, in whole or in part, the three responsive records that remain at issue."  The court finds that "[t]he CIA has submitted detailed declarations that explain how disclosure of the material that the agency has withheld . . . would reveal information regarding certain sources of intelligence, various methods by which the CIA gathers intelligence, and/or the reasons why the CIA gathers certain intelligence."  "[The] Court finds that, in so doing, the agency has carried its burden of establishing that the information that has been withheld constitutes protected intelligence sources and methods."  "The Court also finds that the CIA properly invoked the National Security Act and Exemption 3 to withhold [another document], which is correspondence with a web services company that the CIA's declarant avers 'discuss[es] certain covert capabilities of the CIA.'"
   
• Litigation Considerations:  The court holds that "[plaintiff] is entitled to summary judgment on the email-policy claims[.]"  "[Plaintiff] has presented a ripe challenge to an alleged document-processing policy of the CIA that [plaintiff] has standing to pursue in order to seek a remedy that the FOIA authorizes, and because the record evidence leaves no doubt that the CIA does, in fact, employ an email-request policy that requires the agency to reject certain requests for identifiable records in a manner that contravenes the FOIA, [plaintiff] is entitled to declaratory relief."  The court relates that plaintiff's argues "that the CIA improperly employs '[a] per se policy of arbitrarily refusing to process any requests for electronic communications that do not include [ ] four specific pieces of information' . . . '"to" and "from" recipients, time frame, and subject[.]'"  The court finds that "it makes little sense to argue, as the CIA does here, that the plaintiff needs to point to a regulation that establishes the policy, or that the agency must concede the policy's existence, as a threshold matter (i.e., in order for a plaintiff to have standing to sue), because whether or not 'an agency's refusal to supply information actually evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials,' . . . can itself be the ultimate question at issue in a FOIA policy-or-practice case."  "What is more, in support of its cross-motion for summary judgment, [plaintiff] has presented additional, uncontroverted evidence demonstrating that the CIA has declined to process [plaintiff's] FOIA requests for emails for this same reason on numerous other occasions."  "And if that is not enough, [plaintiff] has also placed into the record a copy of an email template that the CIA has admittedly used when responding to some FOIA requests for email records – a template that states that the CIA 'require[s] requesters seeking any form of electronic communications such as emails, to provide the specific "to" and "from" recipients, time frame and subject[,]' and that the agency declines to process the request at issue in the absence of each piece of information."  Additionally, the court finds that "CIA's arguments that equitable relief is inappropriate in this case because (a) the CIA has processed the requests at issue, and (b) [plaintiff] has an adequate remedy at law (a future FOIA lawsuit) in the event that the CIA refuses to process any of [plaintiff's] pending or future FOIA requests based on the alleged per se policy . . . miss the mark."  "The D.C. Circuit has specifically held that equitable relief is available in cases where an agency is found to have enforced a policy that violate FOIA, even if no FOIA request is currently pending and even if the plaintiff could presumably challenge future application of the policy in subsequent FOIA lawsuits."  "[The] Court easily finds that there is no genuine dispute that the CIA has employed a policy of categorically refusing to process [plaintiff's] FOIA requests for email records that do not specify 'to' and 'from' recipients, time frame, and subject, and it concludes that this policy violates the FOIA."  "Therefore, [the] Court will enter summary judgment in [plaintiff's] favor on [its] policy-or-practice claim, and will declare that this per se policy violates the FOIA."  However, regarding plaintiff's request for injunctive relief, the court finds that "[plaintiff] makes no argument in its briefs that the CIA will likely continue applying this policy if this Court declares that the policy is unlawful, and there is otherwise no record evidence to overcome the presumption of adherence to which the agency is entitled."  "Accordingly, [the] Court will limit its award of equitable relief to a declaration that the CIA's email policy violates the FOIA."