Freedom Watch, Inc. v. National Security Agency , 49 F. Supp. 3d 1 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDOM WATCH, INC.,
Plaintiff,
v. Case No. 1:12-cv-01088 (CRC)
NATIONAL SECURITY AGENCY,
CENTRAL INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE, and
DEPARTMENT OF STATE,
Defendants.
MEMORANDUM OPINION
Freedom Watch, Inc., challenged the responses of four federal agencies to its Freedom of
Information Act (“FOIA”) requests regarding a 2012 New York Times article discussing a U.S.
cyber-attack on Iran. After the Court ruled in favor of three of the agencies on the pleadings, and
dismissed claims against the State Department with respect to all but one category of requested
records, the State Department conducted a rolling search for records responsive to Freedom
Watch’s lone remaining request. Because the Department’s affidavits establish that it conducted an
adequate search, and Freedom Watch has not provided any evidence to the contrary, the Court will
grant the Department’s motion for summary judgment.
I. Background
The genesis of this dispute is a June 1, 2012 New York Times article by David Sanger
describing the Bush and Obama Administrations’ classified program to undermine Iran’s nuclear
program by releasing a computer “worm” within that country’s main nuclear enrichment plant.
Compl. Ex. 1. Sanger reportedly based his account of the initiative—dubbed “Olympic Games”—
on interviews with “current and former American, European and Israeli officials involved in the
program, as well as a range of outside experts.” Id. Freedom Watch believed that classified
information about the program had been leaked by “Obama Administration sources on the
President’s behalf . . . to further [his] 2012 re-election campaign[,]” notwithstanding the multiple
other potential sources for the information contained in the article. Id. Expressing alarm that these
suspected leaks had jeopardized national security and hastened a confrontation between Iran and
Israel, Freedom Watch submitted requests under the Freedom of Information Act, 5 U.S.C. § 552,
to the Department of Defense (“DOD”), the Central Intelligence Agency (“CIA”), the National
Security Agency (“NSA”), and the State Department. The requests sought: (1) information relating
to the article, including classified information that was allegedly leaked to Sanger; (2) records
relating to information released to Sanger; (3) information on whomever provided information to
Sanger; (4) communications with the White House regarding the article; (5) information related to
“the decision to ‘leak’”; and (6) information on any government investigations into the article. Id. ¶
4.
After waiting the required 20 days, see 5 U.S.C. § 552(a)(6)(A), Freedom Watch filed suit to
compel the four agencies to search for and produce responsive records. The NSA and the CIA
moved for judgment on the pleadings and the DOD moved for summary judgment, each of which
the Court granted, resolving all claims in favor of those agencies. Order (Dec. 13, 2012). The
Court also granted the State Department’s motion for judgment on the pleadings with respect to
requests 1 and 3–6, finding the requests to be overly speculative, but denied it as to Freedom
Watch’s second request, regarding information released to Sanger. Id.After the partial dismissal, and while summary judgment briefing was still ongoing, the
State Department conducted several searches for records responsive to Freedom Watch’s second
request. The Department’s searches are detailed in declarations provided by Sheryl L. Walter,
Director of the Department’s Office of Information Programs and Services (“IPS”). According to
Ms. Walter, IPS evaluated Freedom Watch’s request “to determine which offices, overseas posts, or
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records systems within the Department may be reasonably expected to contain the records
requested.” Supplemental Walter Decl. ¶ 1. This selection process was based on “the holdings of
the Department’s records systems, applicable records disposition schedules, and the substantive and
functional mandates of numerous Department offices and Foreign Service posts and missions” as
well as the “nature, scope, and complexity of the request.” Id. ¶ 10. IPS identified three “offices or
records systems with a reasonable possibility of possessing responsive documents”: the Central
Foreign Policy Records, which, as the name suggests, is the central record system at the
Department; the Bureau of Public Affairs, which is charged with managing communications
between the Department and the media; and the Bureau of Near Eastern Affairs, which “advis[es]
the Secretary of State on matters in North Africa and the Middle East.” Id. ¶¶ 12–18.
With relevant locations for the search determined, Department employees began by
conducting full text searches of the electronic record systems in each department—including
individual electronic records of all employees in the Bureau of Public Affairs and 15 employees in
the Bureau of Near Eastern Affairs’ Iran office—for the terms “David Sanger” and “David E.
Sanger.” Id. ¶¶ 14, 17, 19. The Near Eastern Affairs Bureau’s Iran office also searched physical
records that its employees knew to be excluded from the electronic records system and had a
“reasonable possibility of containing information responsive to this FOIA request.” Id. ¶ 19. These
initial searches identified no responsive documents except in the Bureau of Public Affairs, which
discovered three records, two of which the Department released in full and one it released in part
after redacting material it deemed nonresponsive. Id. ¶¶ 9, 14, 17, 19.
After receiving Freedom Watch’s opposition to its summary judgment motion, the
Department voluntarily asked the Bureau of Public Affairs to confirm that no other locations should
be searched. In response, the Bureau determined that it had neglected to search its front office,
which performs executive tasks to support the Bureau. Second Supplemental Walter Decl. ¶ 6.
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Due to its discovery of additional potentially responsive records, the Department sought and was
granted a 60-day extension of time to conduct a supplemental search and reply to Freedom Watch’s
opposition brief. Order (June 5, 2013). Employees of the Bureau conducted a search of the front
office’s paper records and searched its electronic records for the term “Sanger,” uncovering 62
responsive documents. These documents revealed that Sanger had interviewed five State
Department employees. Id. ¶¶ 7–9. The Department then searched the records of those five
employees and their respective departments—by manual search of paper records and full-text
search of electronic records for the term “Sanger”—discovering 14 additional documents. Id. ¶¶
10–19. Since the beginning of this suit, the State Department has produced a total of 79 documents
responsive to Freedom Watch’s FOIA request, releasing 58 in full, 20 in part, and withholding one
in full. Id. ¶¶ 3, 48.
In the midst of the Department’s voluntary supplemental search, Freedom Watch moved to
depose a State Department records custodian concerning the adequacy of the original search, which
Freedom Watch suggested was part of a pattern of “outright obstruction of justice” by the Obama
Administration. Mot. for Discovery at 1. Judge Wilkins denied the motion, finding no evidence of
bad faith on the part of Department, but invited Freedom Watch to renew its request after the
Department had an opportunity to fully explain the adequacy of its search. Minute Order (June 18,
2013). Freedom Watch has declined to renew its motion or to challenge the Department’s
supplemental production.
II. Standard of Review
The Court may grant summary judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The Court must accept the non-movant’s evidence as true and draw all reasonable
inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
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(1986). “FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); accord Brayton
v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary
judgment in the FOIA context requires the government to “demonstrate the absence of a genuine
dispute regarding the adequacy of its search for or production of responsive records.” Judicial
Watch, Inc. v. Dep’t of the Navy, 971 F. Supp. 2d 1, 3 (D.D.C. 2013) (citing Nat’l Whistleblower
Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 21–22 (D.D.C. 2012)).
III. Analysis
A. Adequacy of the State Department’s Search
To meet its FOIA obligations, an agency must show that it “conducted a search reasonably
calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983). The agency is not required to prove that it discovered every possibly relevant
document, id. at 1485, but simply must demonstrate “a good faith effort[.]” Oglesby v. Dep’t of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The Court will judge the adequacy of an agency’s search
for documents by a standard of reasonableness that “depends, not surprisingly, upon the facts of
each case.” Weisberg, 705 F.2d at 1485.
The Court may grant summary judgment on the basis of agency affidavits and declarations
alone when they are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991). The affidavits need not “set forth with meticulous
documentation the details of an epic search for the requested records[.]” Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982). But they must describe “what records were searched, by whom, and
through what processes,” Steinberg v. Dep’t of Justice, 23 F.3d 548, 551–52 (D.C. Cir. 2008)
(citing Weisberg v. Dep’t of Justice, 637 F.2d 365, 371 (D.C. Cir. 1980)), and should “set[] forth
the search terms and the type of search performed and aver[] that all files likely to contain
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responsive materials . . . were searched.” Ogelsby, 920 F.2d at 68. There is a presumption of good
faith accorded to agency submitted affidavits or declarations, “which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” SafeCard Servs.,
926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
The State Department has demonstrated that it conducted an adequate search for records
responsive to Freedom Watch’s FOIA request. Ms. Walter’s declarations indicate the places that
were searched and explain why the Department determined that those records systems were likely
to contain responsive documents. IPS searched the central record system for the State Department
as a whole, the record systems of the bureau that manages communications with the media, and the
bureau that oversees policy in Iran, the country to which Sanger’s article relates. Supplemental
Walter Decl. ¶¶ 12–13, 14, 18. These are perfectly logical locations to search for potentially
responsive records. Walter’s declarations further explain that the terms “David Sanger” and
“Sanger” were used to search relevant electronic records and that physical files were reviewed by
knowledgeable staff. Id. ¶¶ 14, 17, 19; Second Supplemental Walter Decl. ¶¶ 7–9. Searching by
Sanger’s name was a reasonable method of uncovering documents regarding what information
employees may have given him; indeed, Freedom Watch does not quarrel with the search methods
used. Additionally, when IPS realized it had neglected to search other relevant record systems or
when documents suggested that other individuals might have responsive records, the Department
responded by conducting further searches and providing Freedom Watch additional responsive
records. Second Supplemental Walter Decl. ¶¶ 7–19. Notably, Freedom Watch does not object to
the adequacy of the supplemental searches conducted after it filed its opposition.
Freedom Watch may overcome the presumption of good faith accorded the State
Department’s declarations by presenting countervailing evidence, see Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 314 (D.C. Cir. 2003), but it has not done so. It offers instead
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speculative, unsupported assertions that do not call into question the adequacy of the State
Department’s search. It posits, for example, that Sanger must have received the information for the
article directly from former Secretary of State Hillary Clinton, and that “someone was undoubtedly
present at the interview and was responsible for taking notes, preparing memoranda, and/or
preparing some sort of record of the Secretary of State’s statements.” Pl.’s Opp. to Mot. for Summ.
J. at 2, 6–8. These allegations, lacking any evidentiary support, are insufficient to contradict the
comprehensive description of the search set forth in the Walter declarations. See SafeCard Servs.,
926 F.2d at 1201 (“Mere speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable search for them.” (citation omitted)).
Moreover, the Court determines adequacy “not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search.” Iturralde, 315 F.3d at 315.
Freedom Watch also questions the adequacy of the State Department’s search because the
lion’s share of responsive documents was found only as a result of corrective searches. Pl.’s Opp.
to Mot. For Summ. J. at 3–4. But “it does not matter that an agency’s initial search failed to
uncover certain responsive documents so long as subsequent searches captured them.” Hodge v.
FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (emphasis in original). Unless Freedom Watch “can
identify any additional searches that must be conducted,” id., which it has declined to do, the State
Department has met its burden by conducting searches that were reasonably calculated to find
responsive records, regardless of whether the records were found initially or after subsequent
searches.
Finally, Freedom Watch argues that because IPS referred one document to another agency
for review and redaction, Walters lacks “the requisite personal knowledge as to” whether the
document was responsive or was appropriately redacted. Pl.’s Opp. to Mot. for Summ. J. at 6–7.
Walter’s supplemental declaration explains that the document in question originated with the
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National Security Staff (“NSS”), now called the National Security Council, which requested the
redaction of nonresponsive sections. Second Supplemental Walter Decl. ¶¶ 3–4. Walter, as IPS’s
director, had sufficient personal knowledge of the document’s content because IPS initially
discovered the document before sending it to NSS, which then requested redactions that IPS
performed. Id. She also adequately justifies withholding parts of the document, explaining that the
redacted information discussed issues that were of media interest at the time but were not related to
the subject of Freedom Watch’s request. Id. The practice of redacting non-responsive materials
from documents produced in response to FOIA requests has been approved by courts in this Circuit.
See, e.g., Menifee v. Dep’t of the Interior, 931 F. Supp. 2d 149, 167 (D.D.C. 2013); Pinson v.
Lappin, 806 F. Supp. 2d 230, 237 (D.D.C. 2011); Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140,
156 (D.D.C. 2010), aff’d, 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010). 1
In summary, the State Department has submitted “reasonably detailed” declarations “setting
forth the search terms and the type of search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched[.]” Oglesby, 920 F.2d at 68. Because
Freedom Watch has not offered evidence to counter the Department’s declarations, the State
Department has satisfied its burden to establish that it conducted an adequate search in response to
Freedom Watch’s FOIA request.
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Freedom Watch also argues that it cannot know if the search was adequate without knowing how
many subsidiary departments actually exist within the State Department and expresses skepticism
that “a large federal agency throughout the world[] only has two databases from which to search.”
Pl.’s Opp. to Mot. for Summ. J. at 7. As stated above, however, mere speculation that other record
systems should exist does not contradict the State Department’s affidavits explaining why certain
record systems were determined likely to contain responsive records. See SafeCard Servs., 926
F.2d at 1201. The Court also notes that the State Department’s website provides a publically
available chart of its subsidiary departments. Department Organization Chart: March 2014, U.S.
Department of State, http://www.state.gov/r/pa/ei/rls/dos/99494.htm (last visited June 12, 2014).
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B. The State Department’s Vaughn Index
In addition to challenging the adequacy of the State Department’s search, Freedom Watch
argues in its opposition that the Department failed to create a Vaughn index for the withheld
documents. Pl.’s Opp. to Mot. for Summ. J. at 8–9. The only document withheld when Freedom
Watch filed its opposition was the NSS document, which, as explained above, the State Department
adequately justified redacting. After conducting supplemental searches, the State Department
withheld several other documents in whole or in part, but detailed for each record the type of
document, the author of the document, a general description of the contents of the document, and
the basis for the exemption being claimed. See Second Supplemental Walter Decl. ¶¶ 20–47.
“[A]n agency does not have to provide an index per se, but can satisfy its burden by other means,
such as . . . providing a detailed affidavit or declaration.” Voinche v. FBI, 412 F. Supp. 2d 60, 65
(D.D.C. 2006) (citing Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994)). The descriptions in
Walter’s declaration “give the reviewing court a reasonable basis to evaluate the claim of
privilege,” Gallant, 26 F.3d at 172–73, and thus adequately support the State Department’s
withholdings.
C. Exemption 5
FOIA Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 522(b)(5). Exemption 5 encompasses the deliberative process privilege, which
protects “‘documents reflecting advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and polices are formulated.’” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck
& Co., 421 U.S. 132,150 (1975)). The purpose behind the privilege—and thus Exemption 5—is “to
enhance the quality of agency decisions by protecting open and frank discussion among those who
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make them within the Government.” Id. at 9.
Pursuant to Exemption 5, the State Department withheld portions of three documents and all
of one document because they contained briefing material for senior department officials with
“preliminary thoughts and ideas determined to be important for preparing [the] senior official[s] for
an interview with a journalist from a major news media organization.” Second Supplemental
Walter Decl. ¶¶ 27, 31, 46, 47. Because these documents reflect intra-agency deliberations on
communications with the media, they fall within the deliberative process privilege and are covered
under Exemption 5. See Judicial Watch, Inc. v. Dep’t of Commerce, 337 F. Supp. 2d 146, 174
(D.D.C. 2004) (agency properly withheld “talking points and recommendations for how to answer
questions . . . . prepared by [agency] employees for the consideration of [agency] decision-
makers”); see also Competitive Enter. Inst. v. EPA, 12-1617, 2014 WL 308093, at *10–11 (D.D.C.
Jan. 29, 2014) (Exemption 5 held to protect “media-related withholdings . . . reflect[ing] ongoing
decisionmaking about ‘how the agency’s activities should be described to the general public’”).
D. Exemption 6
FOIA Exemption 6 allows agencies to withhold “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). “Similar files” broadly include documents containing “purely personal
information.” See, e.g., Gov’t Accountability Project v. Dep’t of State, 699 F. Supp. 2d 97, 106
(D.D.C. 2010) (citing Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)).
The State Department withheld information in 17 documents provided to Freedom Watch
pursuant to Exemption 6 because the redacted information consisted of personal email addresses,
phone numbers, and details of individuals’ personal lives. Second Supplemental Walter Decl. ¶¶
28–30, 32–45. Such “purely personal information” clearly falls within Exemption 6.
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IV. Conclusion
For the foregoing reasons, the Court will grant the State Department’s motion for Summary
Judgment. The Court will issue an order in accordance with this Memorandum Opinion.
Date: June 12, 2014
CHRISTOPHER R. COOPER
United States District Judge
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