A little-noticed district court opinion has expanded---at least at the margins---the universe of national security materials subject to FOIA requests.
We missed this opinion when it came out back in August, and noticed it only when Steve Aftergood at Secrecy News flagged it on September 23. Apologies for our tardiness. It's actually an important decision.
Plaintiff National Security Counselors ("NSC")---an organization which seeks "to lawfully acquire from the government material related to national security matters and distribute it to the public"---brought actions against the CIA and other federal agencies alleging violations of FOIA. These included:
[T]he withholding of specific information; the adequacy of the agencies' search efforts; the refusal to process FOIA requests; the refusal to produce responsive records in an electronic format; and certain policies or practices which the plaintiff claims are ongoing and systematic FOIA violations.
The opinion is complex and lengthy in part as a consequence of the procedural posture of the case. NSC had filed multiple challenges on the same day, all of which concerned the same body of FOIA requests, so the Court consolidated the matters in the interest of judicial economy. This resulted in a 163-page opinion with multiple, interrelated holdings.
Neither party achieved a complete victory as both NSC and the CIA prevailed on certain issues. On the whole, though, the opinion represents a non-trivial expansion of FOIA's reach into the territory of national security secrecy.
The FOIA Requests at Issue
The FOIA requests at issue were submitted over a length of time spanning from 2009-2011:
- "All [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel ('OGC') for the conduct of civil cases, especially pertaining to the interactions between OGC attorneys and Department of Justice ('DOJ') attorneys.”
- "[C]opies of all [DOJ] [OLC] opinions concerning FOIA or the Privacy Act."
- "[A]ll [CIA] records referencing FOIA and Privacy Act requests submitted by [ten listed parties] that contain remarks, comments, notes, explanations, etc. made by CIA personnel or contractors about the processing of these requests. . ." The NSC also made similar requests of the ODNI and DIA.
- Requests to the CIA, State, and the NSA for "training handbooks, manuals guidelines, worksheets, and similar documents provided to . . . FOIA and Privacy Act analysts."
- Requests to the CIA specific to FOIA requests of individuals working for NSC and the James Madison Project.
- Requests to the CIA for certain FOIA requests fully denied on grounds of "records not reasonably described" or "improper . . . for other reasons."
- All classified tables of contents from the CIA in-house journal Studies in Intelligence.
- Requests to the CIA for "a representative sample of [CIA] analytical reports and memoranda presenting psychological analyses or profiles of foreign government officials, terrorist leaders, international criminals, business figures, and other intelligence targets prepared by the Medical and Psychological Analysis Center. . . "
- A list of "the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010."
- "[A] database listing all of the FOIA requesters from FY 2008 - present that [the CIA has] classified as either 'educational or scientific,' 'commercial,' 'all other,' or 'news media.'"
- "[A] copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services ('IMS') for conducting searches of its own records in response to FOIA requests."
- All CIA records associated with the processing of a certain FOIA request.
- "[A] copy of all [CIA] records pertaining to the IBM supercomputer 'Watson.'"
Judge Howell's Holdings
Assignability of FOIA Rights
The CIA categorically refuses to permit the assignment of FOIA claim rights. In other words, the initial FOIA requester is barred from assigning the request to another interested individual or organization which might be better suited to pursue the request in the administrative proceedings. NSC challenged this policy as a violation of FOIA. And the Court agreed that the categorical prohibition on Assignment of Rights constitutes "a failure to abide by the terms of FOIA." Judge Howell reasoned, in particular, that assignment of claims would pose no undue burden on the CIA, and that assignability presents no serious potential for abuse.
Summary judgment was granted in favor of NSC with respect to CIA's policy of expanding FOIA exemptions to the document level instead of making specific redactions. After considering CIA's argument that redactions were not technically feasible, the court concluded that only case-by-case assessments of technical unfeasibility could justify withholding documents in their entirety.
Adequacy of Searches
Judge Howell considered the agencies’ summary judgment motions with respect to the adequacy of their search efforts in response to NSC's FOIA requests. The court considered each request in turn, and ultimately denied the summary judgment motions. She noted the importance of construing FOIA requests liberally; she also held that, if a document truly does not exist, the agency must explain "what parameters were used to accomplish the search."
Applicability of FOIA Exemptions
Finally, the court considered the NSC’s objections to the CIA's refusal to process certain FOIA requests and to its decision to withhold certain information in its responses. Judge Howell applied D.C. Circuit precedent that "'[t]he CIA's arguments need only be both 'plausible' and 'logical' to justify the invocation of a FOIA exemption in the national security context" but that agencies are under an obligation to construe FOIA requests liberally.
Most interestingly, the court imposed a limit on the 403(g) FOIA exemption. In Aftergood's words:
[Judge Howell] narrowed the permissible scope of records that CIA may withhold under Section 403g of the [Freedom of Information] Act. That section allows CIA to exempt from release information concerning “the organization, functions, names, official titles, salaries, or numbers of personnel employed by” the Agency.
. . .
Instead of just withholding information about CIA organization and personnel, she concluded, the Agency was also wrongly attempting to withhold “information that relates to” CIA organization and personnel– which is almost everything the Agency does.
In rejecting the CIA's broad construction of the § 403(g) exemption, Judge Howell turned first to Milner v. Department of Navy, a 2011 Supreme Court decision. There, Justice Elena Kagan explained that, with respect to a separate FOIA exemption for materials "related solely to the internal personnel rules and practices of an agency" under §552(b)(2):
The use of the term ‘personnel’. . . connotes not that the file or department or practice/rule is for personnel, but rather that the file or department or practice/rule is about personnel—i.e., that it relates to employee relations or human resources.
Judge Howell noted further that the congressional intent for a relatively broad CIA disclosure rule can be inferred by contrasting the statutory scheme governing CIA disclosures with the language in the relatively narrower NSA disclosure rule:
[T]he CIA Act exempts from disclosure “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency,” 50 U.S.C. § 403g, while the NSA Act more broadly exempts from disclosure “the organization or any function of the [NSA],” 73 Stat. at 64.
The bottom line is that the following categories of CIA documents, at least according to one district court judge, are not exempt from disclosure under § 403(g): templates used to task FOIA requests, policies regarding processing of FOIA requests, information that would reveal CIA information management systems including storage and retrieval methodologies, and recommendations about the handling of FOIA requests. Perhaps more controversially, "'information about about the CIA's core functions,' including 'intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence'" is also excluded from protection under § 403(g).
Judge Howell took pains to note, however, that all of this information could be protected by other FOIA exemptions not addressed by the opinion.
As for the many issues that were not resolved at the summary judgment stage, the court ordered the parties to file a status report on the records that remain in dispute, and a proposed schedule for further proceedings.
Although the opinion is relatively modest in absolute terms, it is notable in its unusual scrutiny of the national security apparatus's response to FOIA requests. It remains to be seen whether this trend will continue.