Freedom Watch, Inc. v. Nat'l Sec. Agency, Case No. 1:12–cv–01088 CRC

49 F.Supp.3d 1

Freedom Watch, Inc., Plaintiff

v.National Security Agency, Central Intelligence Agency, Department of Defense, and Department of State, Defendants.

Case No. 1:12–cv–01088 CRC

United States District Court, District of Columbia.

Signed June 12, 2014

Larry E. Klayman, Law Offices of Larry Klayman, Washington, DC, for Plaintiff.

John Kenneth Theis, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

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 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. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C.Cir.1984).

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. S . E . C . , 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...