James Madison Project v. Dep't of Justice, Civil Action No. 15–1307 (RMC)

267 F.Supp.3d 154

JAMES MADISON PROJECT, Plaintiff,

v.DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 15–1307 (RMC)

United States District Court, District of Columbia.

Signed July 25, 2017

Mark Steven Zaid, Bradley Prescott Moss, Law Offices Of Mark S. Zaid, P.C., Washington, DC, for Plaintiff.

Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Plaintiff James Madison Project (JMP) brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, appealing the disposition of records it requested from, among other agencies, the Department of Defense (DoD). On September 22, 2016, the Court granted in part and denied in part Defendants' Motion for Summary Judgment, denying summary judgment on Count Three against DoD due to the inadequacy of the search. See James Madison Project v. DOJ , 208 F.Supp.3d 265 (D.D.C. 2016). DoD submitted a supplemental supporting declaration and renewed its motion for summary judgment on May 5, 2017. See DoD Renewed MSJ [Dkt. 20]; see also Second Declaration of Mark H. Herrington [Dkt. 20–1] (Herrington 2nd Decl.). Based on the uncontested facts in DoD's supplemental declarations, and for the reasons set forth below, the Court will grant DoD's Renewed Motion for Summary Judgment.

I. BACKGROUND

In 2014, JMP requested records from, among other agencies, the DoD, "pertaining to the Book ‘No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden [sic].’ " (No Easy Day ). Compl. ¶¶ 7, 21 [Dkt. 1]. JMP sought:

1. Legal analyses of the extent to which the author of No Easy Day , identified by the pseudonym Mark Owen ("Mr. Owen"), was bound by non-disclosure agreements to submit written manuscripts for pre-publication review;

2. Analyses of the extent to which information contained within the published version of No Easy Day remains properly classified;

3. Any "damage" or "harm" assessments made regarding the impact that the disclosure of any properly classified information has had upon the national security of the United States;

4. Legal analyses of the viability of taking legal action against Mr. Owen, including civil and/or criminal litigation;

5. Any documentation memorializing analyses of administrative measures that could be taken against Mr. Owen, including with respect to his continued eligibility for access to classified information; and

6. Legal analyses of the viability of taking legal action against the Penguin Group USA, the company that published No Easy Day .

Id. ¶ 8. The period of time from which records were sought was January 1, 2011 to the date of acceptance of the request. See id. At issue here are DoD's response to JMP concerning the No Easy Day FOIA request submitted directly to it, as well as DoD's response with respect to a record referred to DoD by the Civil Division of the Department of Justice (Civil Division).

On July 30, 2014, JMP submitted the same No Easy Day FOIA request to the Civil Division. See Declaration of Angie A. Cecil [Dkt. 91] (Cecil Decl.). By letter dated September 12, 2014, the Civil Division noted it had referred a record responsive to category 2 of JMP's No Easy Day FOIA request to DoD for a direct response. Cecil Decl. ¶ 5; see also Declaration of Mark H. Herrington [Dkt. 9–3] ¶ 12 (Herrington 1st Decl.). On November 5, 2014, DoD notified JMP that it was withholding the referred record under Exemptions 1 and 5, and explained JMP's appellate rights. Herrington 1st Decl. ¶ 12. JMP admits that it did not file an appeal. JMP's Resp. to DoD's Statement of Material Facts [Dkt. 12–1] ¶ 15.

JMP also submitted its No Easy Day FOIA request directly to DoD on July 30, 2014. Herrington 1st Decl. ¶ 3. DoD responded on February 10, 2016, withholding all responsive records under Exemptions 5 and 6. See 5 U.S.C. § 552(b)(5), (6) ; Herrington 1st Decl. ¶¶ 4–12.

On September 22, 2016, the Court granted summary judgment in favor of all Defendants except DoD, finding that DoD failed to satisfy the requirements of FOIA § 552(b) because the agency failed to demonstrate that a good-faith effort was made to search for responsive records. See James Madison Project , 208 F.Supp.3d at 287–88. In his First Declaration in support of the agency's Motion for Summary Judgment, DoD's representative, Mark Herrington, failed to indicate that a search was conducted at all, "but instead attempt[ed] a Glomar response that all records that might be located would be exempt under Exemptions 5 or 6." Id. at 287 ; see also Phillippi v. CIA , 546 F.2d 1009, 1013 (D.C. Cir. 1976) (recognizing Glomar responses). This Court held that "a categorical refusal to search is not sufficient" because DoD "ha[d] not articulated why it [could] neither confirm nor deny the existence of responsive records, as required in a Glomar response[,]" and, thus, summary judgment was inappropriate. James Madison Project , 208 F.Supp.3d at 287.

DoD submitted the Second Declaration of Mark H. Herrington on May 4, 2017 in support of its renewed motion for summary judgment. See DoD Renewed MSJ; Herrington 2nd Decl. In his Second Declaration, Mr. Herrington stated that a search "was conducted by DoD, and clarif[ied] that the DoD did not intend to provide a Glomar response." Herrington 2nd Decl. ¶ 3. However, DoD did not describe the methods used to conduct its search. See id. ¶ 5. JMP opposed DoD's Renewed Motion for Summary Judgment, see Opp'n [Dkt. 22], and DoD replied. See DoD Reply [Dkt. 23]. By leave of the Court, JMP filed a surreply, see Surreply [Dkt. 26], and DoD filed a sur-surreply. See DoD Sur–Surreply [Dkt. 27]. On June 30, 2017, DoD further supplemented its account of the methods employed to search for responsive records in response to a request from the Court, see Third Declaration of Mark H. Herrington [Dkt. 29–1] (Herrington 3rd Decl.), and JMP responded. See JMP Resp. [Dkt. 30].

In his Third Declaration, Mr. Herrington explains how he spoke with the attorneys within DoD's Office of General Counsel (OGC) "responsible for all litigation related to No Easy Day ." Herrington 3rd Decl. ¶ 4. Mr. Herrington specifies that, using the OGC's internal filing system and with the help of the relevant attorneys, he identified all classified and unclassified paper records likely to be responsive to JMP's No Easy Day FOIA request. Id. ¶ 5. Mr. Herrington describes how he similarly identified all classified and unclassified electronic records, which were stored in electronic folders that could be identified as relating to No Easy Day . Id. ¶ 6. Finally, Mr. Herrington, with the help of the attorneys, identified the attorneys' email folders relating to No Easy Day . Id. ¶ 7. Mr. Herrington determined that these locations were likely to contain all records responsive to the No Easy Day FOIA request. Id. ¶ 4. Mr. Herrington states that he reviewed all of these records, and he determined that they were, in fact, responsive to the No Easy Day FOIA request, id. at ¶¶ 5–7, but should be withheld under Exemptions 5 and 6. Herrington 2nd Decl. ¶¶ 6–9.

DoD's Renewed Motion for Summary Judgment is ripe for review.

II. LEGAL STANDARD

A. Motion for Summary Judgment under Rule 56

Summary judgment should be granted pursuant to Federal Rule of Civil Procedure 56 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505.

B. FOIA

FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exemptions. See 5 U.S.C. § 552(b) ; Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007). Before commencing a suit in federal court, a FOIA requestor must exhaust its administrative remedies. See Sinito v. DOJ, 176 F.3d 512, 516 (D.C. Cir. 1999). A district court properly grants an agency judgment on the pleadings when plaintiff "fail[s] to internally appeal the agenc[y's] denial[ ] and thus to exhaust its administrative remedies." Freedom Watch, Inc. v. NSA , 783 F.3d 1340, 1344 (D.C. Cir. 2015) ; see also Hidalgo v. FBI , 344 F.3d 1256, 1260 (D.C. Cir. 2003) (instructing district court to dismiss FOIA claim for failure to exhaust administrative remedies). A requester is "deemed to have exhausted his administrative remedies" under FOIA if the agency fails to respond to the request within the statutorily prescribed 20 days. 5 U.S.C. § 552(a)(6)(C) ; see also Toensing v. DOJ , 890 F.Supp.2d 121, 132 (D.D.C. 2012). However, this "so-called constructive exhaustion ceases to offer a basis for judicial action once an agency actually responds." Schwaner v. Dep't of the Army , 696 F.Supp.2d 77, 80 (D.D.C. 2010) (citing Oglesby v. Dep't of the Army , 920 F.2d 57, 61, 63–64 (D.C. Cir. 1990) ). "If a requester actually receives an agency's untimely response before filing suit under § 552(a)(6)(A)(i), he must utilize the administrative appeals process." Schwaner , 696 F.Supp.2d at 80 (citing Judicial Watch v. Rossotti , 285 F.Supp.2d 17, 26 (D.D.C. 2003) ).

Even when a requester has exhausted its administrative remedies, "FOIA cases typically and...