Case 1:10-cv-00196-RMU Document 1 Filed 02/04/10 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER)

1718 Connecticut Ave., N.W.

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Suite 200

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Washington, DC 20009

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Plaintiff,

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NATIONAL SECURITY AGENCY 9800 Savage Road Ft. George G. Meade, MD 20755-6000
NATIONAL SECURITY COUNCIL : Old Executive Office Building ! Washington, DC 20506
Defendants.

Case: 1: 10-cv-00196 Assigned To : Urbina, Ricardo M. Assign. Date: 2/4/2010 Description: FOIAlPrivacy Act
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COMPLAINT FOR INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act ("FOIA"), 5 US.C. § 552 (2007), for injunctive and other appropriate relief, seeking the release of agency records requested by the Electronic Privacy Information Center from the United States National Security Agency/Central Security Service.
Jurisdiction and Venue 2. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) (2009), 5 U.S.C. § 552(a)(6)(C)(i) (2009), and 5 US.c. § 703 (2009). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (2009). Venue is proper in this district under 5 US.C. § 552(a)(4)(B) (2009) and 5 U.S.c. § 703 (2009).

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Parties 3. Plaintiff Electronic Privacy Information Center ("EPIC") is a public interest research organization incorporated as a not-for-profit corporation in Washington, D.C. EPIC's activities include the review of federal activities and policies to determine their possible impacts on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a heavily visited Internet site, http://www.epic.org, which contains extensive information regarding privacy issues, including information EPIC has obtained from federal agencies under the FOIA. 4. Defendant National Security Agency/Central Security Service ("NSA/CSS," "NSA," or "Agency") is an intelligence agency established in the Executive Branch of the United States Government, administered within the United States Department of Defense. The NSA is an agency within the meaning of 5 U.S.C. § 552(f)(l) (2009). 5. Defendant National Security Council ("NSC", or "Council") is a branch of the Executive Office of the President of the United States and exists to advise the President with respect to policies concerning the national security of the United States. The Council's structure and function are established in 50 U.S.C. § 402 (2009).
Facts A National Security Presidential Directive has Reshaped National Cybersecurity Policy
6. On January 8, 2008, President George W. Bush issued National Security Presidential Directive 54 ("NSPD 54"), also known as Homeland Security Presidential Directive 23.
7. The contents ofNSPD 54 have not been released to the public. 8. NSPD 54 established the Comprehensive National Cybersecurity Initiative
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("CNCI"). 9. On May 1,2008, Senators Joseph I. Lieberman and Susan M. Collins, Chairman
and Ranking Member, respectively, of the United States Senate Committee on Homeland Security and Governmental Affairs, wrote a letter to Michael Chertoff, then Secretary of the United States Department of Homeland Security, regarding the CNCI.
10. According to the May 1, 2008 letter, the CNCI "is a multi-agency, multi-year plan that lays out twelve steps to securing the federal government's cyber networks."
11. In a letter dated March 5, 2009, Rod Beckstrom resigned from the position of Director of the National Cybersecurity Center (NCSC) within the Department of Homeland Security.
12. In the March 5, 2009 letter, Beckstrom stated that "NSA currently dominates most national cyber efforts."
13. The Cybersecurity Act of2009 (S. 773) was introduced in the Senate on April 1, 2009, by Senator Jay Rockefeller.
14. The Cybersecurity Act of2009 (S. 773) is currently pending in the Senate Committee on Commerce, Science, and Transportation.
EPIC Submitted a FOIA Request to the NSA Regarding NSPD 54 and the CNCI 15. On June 25, 2009, EPIC transmitted a written FOIA request to the NSA for
agency records ("EPIC's FOIA Request"). EPIC requested the following agency records: a. the text of the National Security Presidential Directive 54 otherwise referred to as Homeland Security Presidential Directive 23; b. the full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation; and
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c. any privacy policies related to either the Directive, the Initiative, including but not limited to, contracts or other documents describing privacy policies for information shared with private contractors to facilitate the Comprehensive National Cybersecurity Initiative.
16. EPIC also asked the NSA to expedite its responses on the basis that the documents pertain to a matter about which there is an urgency to inform the public about an actual or alleged federal government activity, and the request was made by a person primarily engaged in disseminating information, pursuant to 5 U.S.c. § 552(a)(6)(E) (2009). Petitioner based the request on the public's and press's interest in national cybersecurity policy and CNCI, especially with respect to the pending Cybersecurity Act of 2009.
17. EPIC further requested that all fees be waived based on EPIC's status as a representative of the news media.
18. EPIC's FOIA Request was transmitted by facsimile to the NSA at (443) 4793612. EPIC received an automated facsimile statement confirming the NSA's receipt of the transmittal.
The NSA Acknowledged Receipt of EPIC's FOIA Request 19. The NSA transmitted a letter to EPIC dated July 1, 2009 ("NSA Letter 1''). 20. NSA Letter 1 acknowledged the NSA's receipt of EPIC's FOIA Request and assigned it case number 58987. 21. NSA Letter 1 granted waiver of fees. 22. NSA Letter 1 denied expedited processing. 23. NSA Letter 1 did not make any substantive determination regarding EPIC's request.
EPIC Filed an Administrative Appeal with the NSA 24. On July 30, 2009, more than twenty working days after the NSA received EPIC's
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FOIA Request, EPIC transmitted a written administrative appeal to the NSA ("EPIC's Administrative Appeal 1").
25. EPIC's Administrative Appeal 1 was transmitted by certified mail to the NSA/CSS FOIA Appeal Authority at 9800 Savage Road Ste. 6248, Ft. George G. Meade, MD 20755-6248.
26. EPIC's Administrative Appeal 1 appealed the NSA's failure to make a timely determination regarding EPIC's FOIA Request.
27. EPIC's Administrative Appeall also appealed the NSA's denial of EPIC's request for expedited processing.
The NSA Responded in Part to EPIC's Administrative Appeal! 28. The NSA/CSS FOIA Appeals Authority responded to EPIC in a letter dated August 12, 2009 ("NSA Letter 2"). 29. NSA Letter 2 granted EPIC's appeal with respect to the request for expedited processmg. 30. NSA Letter 2 did not make any substantive determination regarding EPIC's FOIA request.
The NSA Responded in Part to EPIC's FOIA Request 3l. The NSA transmitted a letter to EPIC dated August 14,2009 ("NSA Letter 3"). 32. NSA Letter 3 asserted that the agency had completed its search for responsive records. 33. NSA Letter 3 included two redacted documents which had been previously released under the FOIA (on 9/20/2006 and on 811712007, respectively) and which the NSA identified as responsive to the third part of EPIC's FOIA Request.
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34. NSA Letter 3 included information regarding how to file an administrative appeal as to the redactions in the two included documents.
35. With respect to the first two parts of EPIC's FOIA Request, and with respect to other documents responsive to the third part, NSA Letter 3 stated only that since the request had been expedited, "the remaining material responsive has been assigned for review to determine releasability and will be completed as expeditiously as possible."
The NSA Made a Determination Regarding EPIC's FOIA Request 36. The NSA transmitted a letter to EPIC dated October 26, 2009 and signed by Pamela N. Phillips, Chief of the FOIA/PA Office ("NSA Letter 4"). 37. NSA Letter 4 stated that EPIC's FOIA Request had been "further processed under the provisions of the FOIA." 38. NSA Letter 4 asserted that "no records responsive to item 2 of your request were located" and that "[t]hree documents (26 pages) responsive to items 1 and 3 of your request have been reviewed by this Agency as required by the FOIA." 39. NSA Letter 4 asserted that two documents responsive to item 3 of the request "have been withheld in their entirety" because they are "exempt from release pursuant to the fifth exemption of the FOIA" but gave no factual basis for this determination. 40. NSA Letter 4 also asserted that information in one document responsive to item 3 of the request is "currently and properly classified" and therefore exempt "pursuant to the first exemption of the FOIA" but gave no factual basis for this determination. 41. NSA Letter 4 also asserted that portions of both withheld documents are "exempt from disclosure pursuant to the third exemption of the FOIA which provides for the withholding of information specifically protected from disclosure by statute" and cited 18 U.S.C. § 798, 50
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U.S.C. § 403-1(i), and 50 U.S.C. § 402 note, but gave no factual basis for this determination. 42. NSA Letter 4 stated that "the record responsive to item I of your request did not
originate with this Agency" and that "the subject document has been referred to the National Security Council for review and direct response to you."
EPIC Filed a Second Administrative Appeal with the NSA 43. On November 24,2009, EPIC transmitted a written administrative appeal to the NSA ("EPIC's Administrative Appeal 2"). 44. EPIC's Administrative Appeal 2 was transmitted by certified mail to the NSA/CSS FOIA Appeal Authority at 9800 Savage Road Ste. 6248, Ft. George G. Meade, MD 20755-6248. 45. EPIC's Administrative Appeal 2 appealed "the NSA's failure to disclose the record identified as responsive to part 1 of EPIC's FOIA Request." 46. EPIC's Administrative Appeal 2 also appealed "the NSA's failure to disclose any records responsive to part 2 of EPIC's FOIA request." 47. EPIC's Administrative Appeal 2 also appealed "the NSA's failure to disclose the two records identified by the Agency in the October 26 letter as responsive to part 3 of EPIC's FOIA request."
The NSA Acknowledged Receipt of EPIC's Administrative Appeal 2 48. The NSA/CSS FOIA Appeals Authority responded to EPIC in a letter dated December 18,2009 ("NSA Letter 5"). 49. NSA Letter 5 acknowledged receipt of EPIC's Administrative Appeal 2. 50. NSA Letter 5 stated that the Agency "will be unable to provide you a timely response," and predicted "a decision on your appeal within the next nine months."
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The NSC Has Not Communicated to EPIC Regarding EPIC's FOIA Request 51. As of the date of this pleading, EPIC has not received any communication from the National Security Council regarding EPIC's FOIA Request.
Count I (Against Defendant National Security Agency) Violation of the FOIA: NSA's Failure to Comply with Statutory Deadlines 52. Paragraphs 1-51 above are hereby incorporated by reference as if set forth fully herein. 53. The NSA's failure to make a timely determination concerning EPIC's Administrative Appeal 2 violated the statutory deadlines imposed by the FOIA, including the deadlines set forth in 5 U.S.C. § 552(a)(6)(A) (2009). 54. EPIC has exhausted the applicable administrative remedies with respect to EPIC's FOIA Request, under the terms set forth in 5 U.S.c. § 552(a)(6)(C) (2009). 55. The NSA has wrongfully withheld responsive agency records from EPIC. 56. EPIC is entitled to injunctive relief compelling the release and disclosure of the requested agency records. 57. EPIC is further entitled to recover its attorneys' fees and costs in this action pursuant to 5 U.S.c. § 552(a)(4)(E).
Count II (Against Defendant National Security Agency) Violation ofthe FOIA: NSA's Failure to Disclose Responsive Agency Records 58. Paragraphs 1-57 above are hereby incorporated by reference as if set forth fully herein. 59. In responding to EPIC's FOIA Requests, the NSA violated the FOIA by failing to disclose agency records to EPIC that must be disclosed pursuant to the FOIA.
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60. The NSA failed to disclose such agency records by, inter alia: 1) withholding responsive agency records pursuant to alleged exemptions although the alleged exemptions do not apply to the withheld records; and 2) withholding responsive agency records although nonexempt portions of the records are reasonably segregable from exempt portions.
61. In addition, the NSA failed to disclose an agency record in its possession and control by improperly referring a portion of EPIC's FOIA Request to the National Security Council.
62. EPIC is entitled to injunctive relief compelIing the release and disclosure of the requested agency records.
63. EPIC is further entitled to recover its attorneys' fees and costs in this action pursuant to 5 U.S.c. § 552(a)(4)(E).
Count III (Against Defendant National Security Council) Violation of the FOIA: NSC's Failure to Disclose Responsive Agency Records 64. Paragraphs 1-63 above are hereby incorporated by reference as if set forth fully herein. 65. By referring EPIC's FOIA Request to defendant National Security Council, defendant National Security Agency represented that the NSC is subject to the FOIA with respect to this request. 66. The NSC has failed to disclose responsive agency records in its possession in response to the referral by the NSA. 67. EPIC is entitled to injunctive relief compelling the release and disclosure of the requested agency records. 68. EPIC is further entitled to recover its attorneys' fees and costs in this action
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pursuant to 5 U.S.C. § 552(a)(4)(E). Count IV
(Against Defendant National Security Agency) Violation of the Administrative Procedure Act 69. Paragraphs 1-68 above are hereby incorporated by reference as if set forth fully herein. 70. By referring EPIC's FOIA Request to defendant National Security Council, defendant National Security Agency violated the Administrative Procedure Act ("APA"), 5 U.S.c. § 706 (2009). 71. The NSA's referral was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. 72. The NSA's referral exceeded the agency's authority, because the FOIA (the ostensible statutory basis for the referral) does not permit the NSA to refer FOIA requests in this manner. 73. The NSA's referral failed to observe procedures required by law, including, inter alia, the procedures set forth in 32 C.F.R. § 286.4.
Requested Relief WHEREFORE, plaintiff prays that this Court: A. order defendants to produce all responsive agency records within fourteen days of the Court's Order in this matter; B. order defendant NSA to file, within fourteen days of the date of the Court's Order in this matter, a "Vaughn Index," i.e. an affidavit: 1) identifying each document withheld from disclosure; 2) stating defendant's claimed statutory exemption as to each withheld document (or portion of a document); and 3) explaining why each withheld document is
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exempt from disclosure; C. award plaintiff its costs and reasonable attorneys' fees incurred in this action pursuant to
5 U.S.c. § 552(a)(4)(E) (2009); and D. grant such other relief as the Court may deem just and proper.
Respectfully submitted,
I7VJ: ~f:llv By: erdi, Esquire (DC Bar # 495764) / arc Rotenberg, Esquire (DC Bar # 422825) Jared Kaprove, Esquire* ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N. W. Suite 200 Washington, D.C. 20009 (202) 483-1140 (telephone) (202) 483-1248 (facsimile) Dated: February 4, 2010 *Mr. Kaprove is barred in the Commonwealth of Virginia.
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. NATIONAL SECURITY AGENCY, et al. Defendants.

Civil Action No. 10-0196 (BAH)

MEMORANDUM OPINION Pending before the Court is the partial motion to dismiss by the National Security Agency (“NSA”) and the National Security Council (“NSC”) two of the four claims in the Complaint. These claims stem from a Freedom of Information Act (“FOIA”) request that the plaintiff, Electronic Privacy Information Center (“EPIC”), filed with the NSA seeking information related to the Comprehensive National Cybersecurity Initiative, a multi-agency federal initiative to ensure the security of the nation’s online infrastructure. In this case, the NSA referred part of the plaintiff’s FOIA request to the NSC since a responsive document in the NSA’s possession had originated with the NSC. The plaintiff brought this lawsuit against both the NSA and NSC to compel the production of documents responsive to its FOIA request. The plaintiff believes that releasing the documents it seeks “would provide the opportunity for meaningful public participation in the development of new security measures that may have a significant impact on civil liberties, such as privacy.” Def.’s Partial Mot. to Dismiss (“Defs.’ Mot.”), Ex. A at 2-3 (Plaintiff’s FOIA Appeal). The defendants now seek to dismiss the plaintiff’s claims in Count III, which alleges that the NSC “failed to disclose responsive agency records in its possession in response to the referral by the NSA,” Compl. ¶ 66, and in Count IV, which alleges that the NSA

violated the Administrative Procedure Act when it referred the FOIA request to the NSC. Id. ¶ 72. For the reasons discussed below, the Court will grant the partial motion to dismiss.1
I. BACKGROUND
On June 25, 2009, Plaintiff EPIC submitted a FOIA request to the NSA seeking
documents related to the Comprehensive National Cybersecurity Initiative (“CNCI”), an
initiative established by former President George W. Bush that outlines federal cyber-security
goals. Id. ¶¶ 6, 10, 15.
The plaintiff is a not-for-profit public interest research organization that reviews federal
activities and policies to determine their possible impact on civil liberties and privacy interests.
Id. ¶ 3. The NSA is an agency within the Department of Defense that is responsible for shielding
our nation’s coded communications from interception by foreign governments and for secretly
intercepting intelligence communications from foreign nations. See Founding Church of
Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824, 825 (D.C. Cir. 1979); Larson v. Dep’t of
State, No. 02-01937, 2005 WL 3276303, at *17 (D.D.C. Aug. 10, 2005), aff’d, 565 F.3d 857
(D.C. Cir. 2009).
President Bush established the CNCI on January 8, 2008 by issuing National Security
Presidential Directive 54 (“NSPD 54”), also known as Homeland Security Presidential Directive
23. Id. ¶¶ 6, 8. The contents of NSPD 54 have not been released to the public. Id. ¶ 7. The
CNCI, as described by the Senate Committee on Homeland Security and Governmental Affairs,
1 The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 because this case arises under a federal law – the Freedom of Information Act – and “the district courts . . . have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Jurisdiction is also established by the FOIA statute itself, which provides that “[o]n complaint, the district court of the United States. . . in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Section 552(a)(4)(B) also makes venue proper in this District. See In re Scott, 709 F.2d 717, 720 (D.C. Cir. 1983) (citing 5 U.S.C. § 552(a)(4)(B) for the proposition that Congress expressly intended “to render the District of Columbia an all-purpose forum in FOIA cases.”).
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is a “multi-agency, multi-year plan that lays out twelve steps to securing the federal
government’s cyber networks.” Id. ¶¶ 9-10. The CNCI was formed “to improve how the federal
government protects sensitive information from hackers and nation states trying to break into
agency networks.” Defs.’ Mot., Ex. A at 1-2.
On June 25, 2009, the plaintiff submitted a written FOIA request to the NSA that, in its
entirety, sought the following documents:
a. The text of the National Security Presidential Directive 54 otherwise referred to as Homeland Security Presidential Directive 23;
b. The full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation; and
c. Any privacy policies related to either the Directive, the Initiative, including but not limited to, contracts or other documents describing privacy policies for information shared with private contractors to facilitate the Comprehensive National Cybersecurity Initiative.
Compl. ¶ 15. The plaintiff also requested an expedited response to its request. Id. ¶ 16. The
expedited processing request was initially denied on July 1, 2009, but was granted on August 12,
2009, after the plaintiff filed an administrative appeal. Id. ¶¶ 22, 29.
The NSA responded to the plaintiff’s request on August 14, 2009 and produced two
redacted documents that had been previously released under FOIA, although the Complaint does
not indicate whether the plaintiff was the previous recipient of the documents. Id. ¶ 33. On
October 26, 2009, the NSA informed the plaintiff that its request had been processed further and
that three records responsive to the request had been located. Id. ¶¶ 36-38. The NSA withheld
two of the three records in their entirety, claiming that these two records were exempt from
release pursuant to various statutory exemptions to FOIA’s disclosure requirements. Id. ¶¶ 39-
41. The plaintiff’s Complaint indicates the NSA did not provide a factual basis for its
determinations that the claimed FOIA exemptions were applicable to the withheld documents. 3

Id. As for the third record responsive to the plaintiff’s request, the NSA indicated that this record did not originate with the NSA, but rather with the NSC, and that the record had therefore been referred to the NSC for “review and direct response to [EPIC].” Id. ¶ 42. The NSC is a presidential advisory group composed of the President, Vice-President, Secretary of State, Secretary of Defense, and other cabinet-level officials, including the National Security Advisor, that advises the President of the United States on national security and foreign policy issues. Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996); 50 U.S.C. § 402(a).
The plaintiff filed a written administrative appeal to the NSA on November 24, 2009, contesting the NSA’s failure to disclose the records that were found responsive to the FOIA request. Id. ¶¶ 43-47. The NSA acknowledged receipt of the appeal on December 18, 2009 and predicted a decision on the plaintiff’s appeal “within the next nine months.” Id. ¶¶ 48-50. As of February 4, 2010, the date this case was filed, the plaintiff had not received any communication from the NSC regarding the FOIA request. Id. ¶ 51.
The plaintiff brought this case to compel the defendants NSA and NSC to produce “all responsive agency records” and to order the NSA to file a Vaughn index that identifies each withheld document, states the NSA’s claimed statutory exemption as to each withheld document, and explains why each withheld document is exempt from disclosure. Compl., Requested Relief, ¶¶ A-B. In Count I of the Complaint, the plaintiff alleges that the NSA violated FOIA by failing to comply with statutory deadlines regarding its administrative appeal. Id. ¶¶ 52-57. In Count II, the plaintiff alleges that the NSA failed to disclose responsive agency records through (1) withholding records that are not exempt, (2) withholding nonexempt portions of records that are reasonably segregable from exempt portions, and (3) improperly referring a portion of the
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plaintiff’s FOIA request to the NSC. Id. ¶¶ 58-63. In Count III, which is directed against the NSC, the plaintiff alleges that the NSC violated FOIA by failing to disclose responsive agency records in its possession in response to the referral by the NSA. Id. ¶¶ 64-68. Lastly, in Count IV, the plaintiff alleges that the NSA’s referral of the FOIA request to the NSC violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq. Id. ¶ 70.
On March 25, 2010, the defendants filed a partial motion to dismiss Counts III and IV pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defs.’ Mot. at 1.2 The defendants argue that since the NSC is not an entity subject to FOIA’s disclosure requirements, the Court should dismiss the plaintiff’s claims against the NSC (i.e., Count III). Mem. in Supp. of Defs.’ Partial Mot. to Dismiss (“Defs.’ Mem.”) at 1-2. The defendants further argue that the Court should dismiss Count IV, the plaintiff’s APA claim against the NSA, because FOIA provides an adequate alternative remedy for the relief sought in the plaintiff’s APA claim. Id. at 2. The defendants’ partial motion to dismiss is presently before the Court.3 II. DISCUSSION
A. Standard of Review Congress enacted FOIA to promote transparency across the government. See 5 U.S.C. §
552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., No. 09-02064, 2011 WL 1326928, at *3 (D.D.C. April 7, 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). The Supreme Court has explained that FOIA is “a means for citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy.” Nat'l Archives & Records Admin. v. Favish,
2 This case was reassigned to the presiding judge on January 20, 2011. 3 Since the present motion to dismiss addresses only Counts III and IV of the Complaint, the Court does not reach the merits of Counts I and II; namely, whether the NSA has validly asserted certain FOIA exemptions and fulfilled its statutory disclosure obligations.
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541 U.S. 157, 171-172 (2004) (internal citations omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The strong interest in transparency must be tempered, however, by the “legitimate governmental and private interests [that] could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010); see also Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. 5 U.S.C. § 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than “merely consistent with” a defendant's liability; “the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949, 1940.
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The Court must “assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotations and citations omitted). When the Court reviews legal conclusions, however, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable.” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).
B. Analysis 1. The NSC is not an Agency Subject to FOIA
The text of FOIA makes clear that the statute applies to “agenc[ies]” only. See 5 U.S.C. § 552(a) (“Each agency shall make available to the public information as follows…”). The statutory definition of an “agency” explicitly includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President). See 5 U.S.C. § 552(f). Using legislative history as its guide, however, the Supreme Court has held that “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President are not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 (1980) (quoting H.R. Rep. No. 93-1380, at 15 (1974) (Conf. Rep.)) (internal quotations and citations omitted).
The National Security Act of 1947 established the NSC to “advise the President with respect to the integration of domestic, foreign, and military policies relating to national security.” 50 U.S.C. § 402(a); Armstrong, 90 F.3d at 556. Pursuant to the Reorganization Plan No. 4 of
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1949, the NSC was transferred to the Executive Office of the President. Reorg. Plan No. 4 of 1949, 14 Fed. Reg. 5227, 63 Stat. 1067 (1949).
This Circuit has unambiguously held that the NSC is not an agency subject to FOIA. Armstrong, 90 F.3d at 565 (“[W]e hold that . . . the NSC is not an agency subject to the FOIA.”); see also Citizens for Responsibility and Ethics in Wash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009) (“Nor is the National Security Council . . . covered by FOIA because it plays no ‘substantive role apart from that of the President, as opposed to a coordinating role on behalf of the President.’”) (quoting Armstrong, 90 F.3d at 565); Alexander v. FBI, 691 F. Supp. 2d 182, 189 (D.D.C. 2010) (“[T]he National Security Council [and certain other Executive offices] have all been excluded from FOIA’s definition of agency because they are either part of the President’s immediate staff or have the sole function of advising and assisting the President.”). In ruling that the NSC is not an agency subject to FOIA, the D.C. Circuit in Armstrong applied a three-factor test to determine whether an entity is an agency subject to FOIA. See Armstrong, 90 F.3d at 558-65 (applying three-factor test described in Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993)). The test requires the court to inquire into (1) “how close operationally the group is to the President,” (2) “whether it has a self-contained structure,” and (3) “the nature of its delegat[ed]” authority. Id. These three factors do not need to be weighed equally; rather, each factor warrants consideration insofar as it is illuminating in the particular case. Armstrong, 90 F.3d at 558. The court found that the NSC has a firm structure, making it similar to an agency, but ultimately concluded that because the NSC operates in such close proximity to the President – who chairs it – and does not exercise substantial independent authority, it is “more like the President’s immediate personal staff.” Id. at 567. Accordingly, the D.C. Circuit held that the
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“NSC is not an agency within the meaning of the FOIA.” Id at 556. That conclusion is binding upon this Court.
Organizations that are not an “agency” under FOIA are neither required to respond to a FOIA request nor subject to a FOIA lawsuit. See Citizens for Responsibility and Ethics in Wash., 566 F.3d at 225; Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). Since the D.C. Circuit squarely held in Armstrong that the NSC is not an agency subject to FOIA, the NSC cannot be compelled to respond to a FOIA request.
The plaintiff attempts to distinguish Armstrong because the FOIA request in that case was made directly to the NSC, while, in this case, the NSA referred the request to the NSC. See Pl.’s Opp’n to Defs.’ Partial Mot. to Dismiss (“Pl.’s Opp’n”) at 3. The plaintiff contends that, by referring the FOIA request to the NSC, the NSA “treat[ed] the NSC as if it were an agency subject to the FOIA,” and therefore this Court should find the NSC subject to FOIA in this case. Id at 4.
The plaintiff’s argument is unpersuasive. It is true that agencies that receive FOIA requests and discover responsive documents that were created by another agency may forward, or “refer,” those requests to the agency that “originated” the document. See Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *6 (D.D.C. Mar. 19, 2009) (“A ‘referral’ occurs when, in the course of reviewing documents responsive to a FOIA [ ] request, an agency finds a document that was originated by a second agency. When that occurs, the agency receiving the FOIA [ ] request forwards, or ‘refers,’ the document(s) at issue to the second agency, which then becomes responsible for directly responding to the requester as to those documents.”) (internal citations omitted). Here, however, the question is whether an entity that is not an agency subject to FOIA must respond to a FOIA request referred from an agency that is subject to FOIA. This question
9

appears to be one of first impression in this Circuit, since neither the parties nor the Court have located authority that directly addresses the issue. The Court finds the answer to this question to be clear-cut: The answer is no. An entity that is not subject to FOIA cannot unilaterally be made subject to the statute by any action of an agency, including referral of a FOIA request. It would defy logic and well-settled legal norms if an agency could unilaterally expand the scope of FOIA by referring requests to entities beyond FOIA’s ambit.
The plaintiff points out, correctly, that the NSA’s internal regulations permit it to refer FOIA requests for records originated “by other agencies” to “the originating agency’s FOIA Authority.” 32 C.F.R. § 299.5(k). Yet, by referring the plaintiff’s FOIA request to the NSC – which is not an “agency” for FOIA purposes – the NSA does not thereby transform the NSC into an agency and render the NSC “subject to the FOIA with respect to this request,” as the plaintiff alleges. Compl. ¶ 65. As an agency within the Executive Branch, the NSA does not have the power to expand FOIA’s reach beyond the scope intended by Congress. See Emily’s List v. FEC, 581 F.3d 1, 26 (D.C. Cir. 2009) (“The Executive Branch cannot make law, but instead executes laws enacted by the Legislative Branch.”). “[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). As the Supreme Court has explained, “[a]n agency may not confer power upon itself. To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do.” Id. at 374-75; see also Cal. Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 398 (D.C. Cir. 2004). Even assuming, arguendo, that the NSA’s regulations authorized a referral to the NSC, the NSA’s regulations cannot trump Congressional intent to
10

exclude close presidential advisors from FOIA. See Kissinger, 455 U.S. at 156; see also Armstrong, 90 F.3d at 558.
The plaintiff further argues that even if the NSC is not technically an “agency” subject to the FOIA, the NSA should be held to its representation “that the NSC would ‘review’ the request and provide a ‘direct response.’” Pl.’s Opp’n at 4. Indeed, the plaintiff contends reliance on this representation was reasonable since, before the D.C. Circuit decided in Armstrong that the NSC was not subject to FOIA, the NSC had voluntarily responded to certain FOIA requests while asserting that it was not statutorily required to do so. See Pl.’s Opp’n at 4-5 (citing Armstrong, 90 F.3d at 557, 566). This argument essentially rests on an equitable estoppel theory, but equitable estoppel is not available against the federal government, except where the plaintiff has relied on the government’s conduct “in such a manner as to change [its] position for the worse,” and where the government has engaged in “affirmative misconduct.” Morris Commc’ns, Inc. v. FCC, 566 F.3d 184, 191 (D.C. Cir. 2009). Such circumstances are absent from this case. See, e.g., id. at 192 (finding an agency’s “three-year silence” in response to a request for waiver of automatic cancellation of radio licenses was “egregious” but did not constitute “affirmative misconduct”). Moreover, the D.C. Circuit expressly addressed the issue of the NSC’s prior voluntary disclosures in Armstrong: “That the NSC . . . voluntarily subjected certain of its records to the FOIA and the [Federal Records Act] does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to those statutes.” Armstrong, 90 F.3d at 566. In short, the law in this Circuit since Armstrong is that the NSC is not subject to FOIA requests.
Lastly, the plaintiff asks this Court to find the NSC subject to FOIA in this case in order to avoid its FOIA request from being “toss[ed]… down a procedural black hole, with neither [the
11

NSA nor the NSC being] required to disclose an agency record that they both possess.” Pl.’s Opp’n at 3. The plaintiff contends that the defendant’s arguments would trap its request in a Catch-22 based on two “clearly contradictory” premises: (1) the NSA properly referred EPIC’s FOIA request to the NSC; and (2) the NSC need not respond to the request because it is not subject to FOIA. Id. Dismissing the plaintiff’s claim against the NSC, however, does not leave the plaintiff’s request stuck in limbo, as the plaintiff fears, because the plaintiff can still pursue its claim against the NSA for wrongfully withholding an agency record in its possession.
Indeed, Count II of the Complaint alleges that the NSA violated FOIA by “improperly referring a portion of EPIC’s FOIA request to the [NSC].” Compl. ¶ 61. The defendants have not moved to dismiss this count and the defendants concede that the plaintiff can continue its prosecution of this claim against the NSA.4 See Defs.’ Reply Mem. at 4. While the NSC is not subject to FOIA requests, the NSA’s referral of the FOIA request to the NSC does not relieve the NSA of its continuing obligation to respond to the request. An agency may only properly refer a FOIA request to another agency when doing so does not constitute an improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 190 (D.C. Cir. 2007) (“Under 5 U.S.C. § 552(a)(4)(B), when responsive documents have been unjustifiably withheld, a district court has the power to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.”) (internal quotation omitted). A referral of a FOIA request could be considered a “withholding” if “its net effect is to impair the requester’s ability to obtain the records or
4 The NSA may intend to argue that its referral of the plaintiff’s request to the NSC was a proper inter-agency referral that relieved the NSA of any obligation to respond to the request. The plaintiff has inferred as much from its interpretation of a footnote in the defendants’ memorandum, see Pl.’s Opp’n at 5 (citing Defs.’ Mem. at 5 n.4), but the Court notes that the NSA has not directly advanced this position before the Court. The Court agrees with the plaintiff that such a position would be facially inconsistent with the defendants’ arguments regarding the instant motion.
12

significantly to increase the amount of time he must wait to obtain them.” McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983), vacated in part and aff’d in part, 711 F.2d 1076 (D.C. Cir. 1983). Such a withholding would be “improper” when it fails to satisfy a reasonableness standard for evaluating agency FOIA procedures. Id. at 1110. In considering the plaintiff’s claims against the NSA, which the defendants have not moved to dismiss, this Court will have an opportunity to evaluate the propriety of the NSA’s handling of all documents responsive to the FOIA request, including the document that originated with the NSC.
The NSA’s referral of the plaintiff’s FOIA claim to the NSC, even combined with its representation that the NSC would respond directly to the plaintiff’s request, does not subject the NSC to FOIA. Accordingly, the Court will grant the defendants’ motion to dismiss Count III of the plaintiff’s Complaint and dismiss the NSC from this action.
2. The FOIA Provides the Plaintiff with an Adequate Alternative Remedy to the Plaintiff’s APA Claim
Count IV of the plaintiff’s Complaint alleges that the NSA violated the APA by referring the FOIA request to the NSC. Compl. ¶ 70; cf. 5 U.S.C. § 706(2)(A). Specifically, the plaintiff claims the referral was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law” because the FOIA does not permit the NSA to refer FOIA requests in this manner and because the NSA’s referral failed to observe procedures required by law, including the procedures set forth in NSA regulations codified at 32 C.F.R. § 286.4.5 Compl. ¶¶
5 The plaintiff does not make clear the specific sub-part of 32 C.F.R. § 286.4 that the NSA allegedly violated. See Compl. ¶ 73. The plaintiff may be relying on § 286.4(i)(7), which governs how Department of Defense (“DoD”) Components, such as the NSA, respond to requests involving NSC records. According to § 286.4(i)(7), “DoD records in which the NSC or White House has a concurrent reviewing interest, and NSC, White House, or [White House Military Office] records discovered in DoD Components’ files shall be forwarded to the Directorate for Freedom of Information and Security Review (DFOISR). The DFOISR shall coordinate with the NSC, White House, or WHMO and return the records to the originating agency after coordination.”
13

71-73. The defendant has moved to dismiss the plaintiff’s APA claim because an adequate remedy is available under FOIA. See Defs.’ Mem. at 7.
The APA permits judicial review of “final agency action[s] for which there is no other adequate remedy in a court.” See 5 U.S.C. § 704. The Supreme Court has held that the APA’s judicial review provision “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.” Bowen v. Mass., 487 U.S. 879, 903 (1988). In this Circuit, the alternative remedy “need not provide relief identical to relief under the APA, so long as it offers relief of the same genre.” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009). “[W]here a statute affords an opportunity for de novo district-court review” of the agency action, APA review is precluded since “Congress did not intend to permit a litigant challenging an administrative denial . . . to utilize simultaneously both [the statute’s review provision] and the APA.” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health and Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005).
APA claims arising out of an agency’s response to a FOIA request must be dismissed when they seek relief that can be obtained through a FOIA claim itself. See Feinman v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C. 2010) (“This Court and others have uniformly declined jurisdiction over APA claims that sought remedies made available by FOIA.”); Kenney v. U.S. Dep’t of Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009) (“Plaintiff’s claim that the [agency] improperly withheld agency records that were responsive to his FOIA request is, of course, reviewable under the FOIA itself. . . Accordingly, plaintiff does not also have access to judicial review under the APA.”) (internal citations omitted); People for the American Way Found. v. Nat’l Parks Serv., 503 F. Supp. 2d 284, 308 (D.D.C. 2007) (finding agency’s alleged failure to disclose documents responsive to plaintiff’s FOIA request not reviewable under APA); Edmonds Institute v. U.S.
14

Dep’t of Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005) (finding FOIA provided adequate
remedy and dismissing plaintiff’s claim under the APA that the agency failed to respond to
FOIA requests within statutory timeline).
The plaintiff asserts that “[c]ourts often adjudicate lawsuits involving related APA claims
and FOIA claims,” citing in support of this proposition Snyder v. CIA, 230 F. Supp. 2d 17
(D.D.C. 2002). Pl.’s Opp’n at 8. In that case, a court in this District appeared to have addressed
an APA claim challenging the defendant agency’s FOIA referral procedures. A close reading of
the case reveals, however, that the statutory provision that the court actually applied in
adjudicating the “APA” claim in Snyder was “Section 552(a)(4)(B) of the Administrative
Procedures Act” or “5 U.S.C. § 552(a)(4)(B)” – i.e., the judicial review provisions of the FOIA
statute, not the general APA judicial review provisions, which are codified at 5 U.S.C §§ 704-
706. Thus, Snyder does not actually present a situation in which a court in this District
entertained a FOIA claim and a related APA claim under 5 U.S.C. § 706, as the plaintiff contends.6 Even if Snyder did present such a situation, however, the Court would still dismiss the APA claim in this case in view of the binding precedents from the D.C. Circuit. 7
The plaintiff asserts that the cases in which APA claims have been dismissed from
FOIA suits are distinguishable from the instant situation, since the plaintiff here is asserting an
APA violation that stems not from failure to disclose documents responsive to its FOIA request,
6 The original enactment of FOIA amended the public disclosure section of the APA. See EPA v. Mink, 410 U.S. 73, 79 (1973). FOIA remains codified within the APA at 5 U.S.C. § 552. 7 In defense of its APA claim, the plaintiff also cites one case from outside this Circuit. See Pl.’s Opp’n at 8 (citing Or. Natural Desert Ass’n v. Locke, 572 F.3d 610, 618 (9th Cir. 2009)). At issue in Locke was an agency regulation that defined documents responsive to FOIA requests as those within the possession and control of the agency as of the date of the FOIA request. 572 F.3d at 613. The Oregon Natural Desert Association (“ONDA”) argued that this cut-off regulation violated FOIA. Id. The district court agreed and awarded attorney’s fees to ONDA. Id. On appeal, the agency argued that it should not be liable for ONDA’s attorney’s fees regarding this claim because the claim should have been brought under the APA, not FOIA. Id. at 618. The Ninth Circuit did not adopt the agency’s reasoning and held that, even if the claim had been brought under the APA, ONDA would have prevailed in its challenge to the validity of the regulation and would have been awarded attorney’s fees. Id.
15

but rather from the NSA’s failure to abide by its own regulations. See Pl. Opp’n at 8. This distinction is not persuasive. The plaintiff is requesting the same relief for its APA claim that it is requesting for its FOIA claims – a court order requiring production of all responsive agency records and requiring the NSA to file a Vaughn Index describing and justifying all claimed exemptions. See Compl., Requested Relief ¶¶ A-B. Accordingly, adequate relief is available under FOIA without recourse to the APA. See Feinman, 713 F. Supp. 2d at 76-77 (finding relief under the APA precluded when the plaintiff was challenging agency’s FOIA procedure, not agency’s substantive determinations on his FOIA request, because plaintiff would receive the same relief if he prevailed on his FOIA claims); see also Garcia, 563 F.3d at 522 (explaining that APA review is precluded where Congress has otherwise provided an adequate alternative remedy that offers relief of the “same genre”).
Since adequate relief is available to the plaintiff under FOIA, the Court will grant the defendants’ motion to dismiss Count IV of the plaintiff’s Complaint. III. CONCLUSION
For the reasons stated above, the Court concludes that Counts III and IV of the plaintiff’s Complaint should be dismissed and that the NSC should be dismissed from this action. Accordingly, the defendants’ partial motion to dismiss is granted. The parties shall submit a joint report on or before July 20, 2011, on the status of this matter and a proposed schedule for completion of a Vaughn index and/or dispositive motions. An order consistent with this Memorandum Opinion will be entered separately.

DATED: July 7, 2011

/s/ Beryl A. Howell
BERYL A. HOWELL United States District Judge
16

 
 Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

2013 WL 5701645 Only the Westlaw citation is currently available. United States District Court, District of Columbia.
Electronic Privacy Information Center, Plaintiff, v.
National Security Agency, Defendant.
Civil Action No. 10–196 (BAH) | October 21, 2013
Synopsis Background: Plaintiff brought suit under the Freedom of Information Act (FOIA), claiming that the National Security Agency (NSA) had wrongfully withheld records that were responsive to FOIA request. The NSA asserted “national security” and other FOIA exemption, and parties cross-moved for summary judgment.
Holdings: The District Court, Beryl A. Howell, J., held that:
[1] Presidential directive issued to select and limited group of senior foreign policy advisors, cabinet officials, and agency heads on subject of cybersecurity policy, but whose further dissemination was expressly prohibited, without White House approval, did not qualify as “agency record,” of kind potentially subject to disclosure under the FOIA;
[2] conclusory challenge to classification authority of agency officials who had designated that certain information be kept secret in interest of national defense or foreign policy was insufficient to raise any genuine issue of material fact precluding summary judgment; but
[3] the NSA interpreted the FOIA request too narrowly in treating it as request only for records emanating from outside the NSA.
Motions granted in part and denied in part.
Attorneys and Law Firms
Marc Rotenberg, Amie L. Stepanovich, Ginger P. McCall, Washington, DC, for Plaintiff.

Gregory Peter Dworkowitz, Judson Owen Littleton, U.S. Department of Justice, Washington, DC, for Defendant.
Opinion

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge
*1 The plaintiff, Electronic Privacy Information Center (“the plaintiff” or “EPIC”), brings this action under the Freedom of Information Act, 5 U.S.C. § 552, claiming that the defendant, the National Security Agency (“the defendant” or “NSA”), wrongfully withheld responsive records to a FOIA request seeking the unredacted text of National Security Presidential Directive (“NSPD”) 54 and related documents.1 Compl. ¶¶ 15, 55, ECF No. 1. Pending before the Court are the defendant’s Motion for Summary Judgment, ECF No. 12, and the plaintiff’s Cross-Motion for Summary Judgment, ECF No. 13. For the reasons set forth below, both motions are granted in part and denied in part.

1

Although not fully described in the Complaint, these

related documents, as made clear in the parties’

briefing, are IAD Management Directive 20 and

NSA/CSS 1–58.

I. BACKGROUND
A. Factual History
1. National Security Presidential Directive 54
The main document at issue here, NSPD 54, also known as Homeland Security Presidential Directive 23 (“HSPD 23”), was issued by then-President George W. Bush on January 8, 2009. Declaration of Diane M. Janosek, Deputy Associate Director for Policy and Records, NSA, (“Janosek Decl.”) ¶ 8, ECF No. 12–2. “NSPD 54 is a confidential communication from the President of the United States to a select and limited group of senior foreign policy advisors, cabinet officials, and agency heads on the subject of cybersecurity policy.” Decl. of
1

Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

Mary Ronan, Director of Access Management Office, National Security Staff (“Ronan Decl.”) ¶ 7, ECF No. 12–10; see also Def.’s Mem. Supp. Mot. for Summ. J. (“Def.’s Mem.”) at 3, ECF No. 12–1. “NSPD 54 also implemented the [Comprehensive National Cybersecurity Initiative (“CNCI”) ].” Janosek Decl. ¶ 8. It was distributed with a “transmittal memo” from the Homeland Security Council’s Executive Secretary that “emphasized NSPD54’s close-hold nature and the need to safeguard its content.” Ronan Decl. ¶ 7. This transmittal memo “prohibited dissemination of the document beyond its authorized recipients without White House approval and further instructed that even within receiving agencies, copies should be distributed only on a need to know basis.” Id. The document is classified “Top Secret” but includes portions that are unclassified.2 Id. ¶ 8.

2

There is some dispute as to how much of, and at what

level, NSPD 54 is classified. The defendant asserts it is

withholding all of NSPD under Exemption 5 as a

“presidential communication,” but it also asserts that

one paragraph is being withheld under Exemption 1

“because the information is currently and properly

classified in accordance with [Executive Order] 13526

and Exemption 3 because the information is protected

by statutes.” Janosek Decl. ¶ 34. The NSC’s declarant,

however, states “NSPD–54 as a whole is classified as

TOP SECRET. Individual paragraphs within NSPD–54

have different classification markings ranging from

UNCLASSIFIED to, SECRET, and TOP SECRET.”

Ronan Decl. ¶ 8. It is unnecessary to determine at what

level, if any, NSPD 54 is classified because, as

explained in part III.A infra, NSPD 54 is not an

“agency record” for the purposes of the FOIA under the

D.C. Circuit’s recent opinion in Judicial Watch v.

United States Secret Service, 726 F.3d 208

(D.C.Cir.2013).

2. The Plaintiff’s FOIA Request
*2 In June 2009, the plaintiff submitted a FOIA request to the NSA seeking “National Security Presidential Directive 54 ... and related records” from the defendant. Janosek Decl. Tab A at 3, ECF No. 12–3. Specifically, the FOIA request sought: (1) “The text of the National Security Presidential Directive 54 otherwise referred to as The Homeland Security Presidential Directive 23 [;]” (2) “The full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative,

as well as any executing protocols distributed to the agencies in charge of its implementation[;]” and (3) “Any privacy policies related to either the Directive, [or] the Initiative, including but not limited to, contracts or other documents describing privacy policies for information shared with private contractors to facilitate the Comprehensive National Cybersecurity Initiative.” Id. at 5.3 On August 14, 2009, the defendant released two redacted documents, USSID SP0018 and NSA/CSS Policy 1–23, responsive to the third part of the plaintiff’s request that had been previously released pursuant to the FOIA.4 Janosek Decl. ¶ 13. With that release, the defendant notified the plaintiff that other responsive records had also been located and were under review “to determine what information could be released and the [the defendant] would finish [its] review as expeditiously as possible.” Id.

3

The request also sought expedited processing and a

request for a fee waiver. Janosek Decl. Tab A at 5–6.

The fee waiver was granted but expedited processing

was initially denied. Janosek Decl. ¶ 11. After an

administrative appeal, the request for expedited

processing was granted. Id. ¶ 12.

4

The defendant does not specify to whom the documents

had been previously released. See Janosek Decl. ¶ 13;

Janosek Decl. Tab E at 2, ECF No. 12–7.

By letter dated October 26, 2009, the defendant informed the plaintiff that it had no records responsive to the second part of the plaintiff’s request. Janosek Decl. Tab F at 1, ECF No. 12–8. Of the three documents responsive to the first and third parts of the plaintiff’s request, two were being withheld in their entirety under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure “inter-agency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the agency.” Janosek Decl. Tab F at 1. Portions of the same documents were also being withheld under FOIA Exemption 1, 5 U.S.C. § 552(b)(1), which exempts from disclosure items properly classified. Id. at 1–2. The third document was not released as it “did not originate with this Agency” and had “been referred to the National Security Council for review and direct response to [the plaintiff].” Id. at 2.
The plaintiff timely filed an administrative appeal of these determinations. Janosek Decl. ¶ 17. While the appeal was
2

Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

pending, the plaintiff timely filed the instant action. Id. The defendant subsequently released redacted copies of IAD Management Directive 20 and NSA/CSS 1–58, which were the two documents it referred to in the October 26, 2009 letter as being withheld in their entirety under Exemption 5. Id. ¶ 15 n.2. Portions of those documents continued to be withheld under Exemptions 1 and 3. Id. Thus, at issue in this case are the portions of IAD Management Directive 20 and NSA/CSS 1–58 withheld under Exemptions 1 and 3, and NSPD 54. Id. NSPD 54 is the document that did not originate with the defendant agency, and is being withheld in its entirety under the presidential communications privilege portion of Exemption 5, 5 U.S.C. § 552(b)(5), with one paragraph also being withheld under Exemptions 1 and 3. See Janosek Decl. ¶ 34.
B. Procedural History The plaintiff filed the instant action against the Defendant and the National Security Council (“NSC”) asserting four claims for relief regarding the defendant’s alleged failure to comply with the FOIA’s statutory deadlines and to disclose responsive agency records (Counts One and Two); the National Security Council’s alleged failure to disclose responsive agency records (Count 3); and the defendant’s alleged violation of the Administrative Procedure Act, 5 U.S.C. § 706 (Count 4). See Compl. ¶¶ 52–73. The Complaint seeks production of all responsive records, a Vaughn index describing all records withheld and the exemptions under which they are being withheld, and attorneys’ fees. Id. at 10–11.
*3 The defendant and the NSC filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as to Counts Three and Four and to dismiss all claims against the NSC. See Def.’s Partial Mot. to Dismiss at 1, ECF No. 4. This motion was granted because the NSC is not an “agency” within the meaning of the FOIA, see Mem. Op. at 8–9, ECF No. 9, and adequate relief is available to the plaintiff under the FOIA without resort to the APA. See id. at 14.
Now pending before the Court are the parties’ cross motions for summary judgment on the remaining counts, Counts One and Two. After the motions were fully briefed, the D.C. Circuit released its opinion in Judicial Watch, Inc. v. United States Secret Service, 726 F.3d 208 (D.C.Cir.2013) (“Judicial Watch ”), which, for the first time, applied the “control” test for whether a record is an “agency record” set forth in United We Stand America,

Inc. v. IRS, 359 F.3d 595 (D.C.Cir.2004) (“United We Stand ”), to the Office of the President. See Judicial Watch, 726 F.3d at 231. The Court invited the parties to supplement their briefing as to whether NSPD 54 was an “agency record” under the United We Stand test. See Minute Order dated September 9, 2013. The parties declined to do so. See Joint Status Report at 1, ECF No. 26. The motions are now ripe for decision.
II. LEGAL STANDARD [1] [2] [3]Congress enacted the FOIA as a means “to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C.Cir.2011) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The Supreme Court has “consistently recognized [ ] the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 290, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). At the same time, the statute represents a “balance [of] the public’s interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C.Cir.2010) (internal citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy, ––– U.S. ––––, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)); see also Pub. Citizen, Inc. v. Ofc. of Mgmt. and Budget, 598 F.3d 865, 869 (D.C.Cir.2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361, 96 S.Ct. 1592.
[4] [5]The agency invoking an exemption to the FOIA has the burden “to establish that the requested information is exempt.” Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 351–352, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979); see also Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003) (holding that the agency “bears the burden of establishing the applicability of the claimed exemption.”). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973), or both, to demonstrate that the government has analyzed carefully any material withheld,
3

Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996) (“The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection ... [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency’s decision.”).
*4 [6]A district court must review the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption.” Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). The FOIA provides federal courts with the power to “enjoin the agency from withholding records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. 552(a)(4)(B).
[7] [8]Summary judgment is appropriate when “there is no genuine dispute as to any material fact.” FED. R. CIV. P. 56. “In FOIA cases, ‘[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ ” Judicial Watch, 726 F.3d at 215 (D.C.Cir.2013) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C.Cir.2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994)). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” Judicial Watch, Inc. v. U.S. Dep’t of Defense, 715 F.3d 937, 941 (D.C.Cir.2013) (quoting ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C.Cir.2011)); Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C.Cir.2009) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir2007)).
III. DISCUSSION [9] [10]The parties have focused their attention on whether the withholding of records responsive to the plaintiff’s request under exemptions to the FOIA was proper, but such exemptions are irrelevant if the records requested are not “agency records” within the meaning of the FOIA. See Judicial Watch, 726 F.3d at 214–15. If the records in question are not “agency records,” courts do not have the

power under the FOIA to order their disclosure.5 See id.; see also 5 U.S.C. § 552(a)(4)(B). Thus, the Court will first determine if the primary document at issue, NSPD 54, is an “agency record” before turning to a discussion of the propriety of any exemptions. Next, it will review the application of Exemptions 1 and 3 to IAD Management Directive 20 and NSA/CSS 1–58. Finally, the Court will turn to the plaintiff’s challenge to the defendant’s interpretation of the second portion of the plaintiff’s request.

5

Whether a document is an “agency record” is a

jurisdictional question that must be answered before

proceeding to decide a case under the FOIA on the

merits. See Kissinger v. Reporters Comm. for Freedom

of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63

L.Ed.2d 267 (1980) (“Under 5 U.S.C. § 552(a)(4)(B),

federal jurisdiction is dependent upon a showing that an

agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency

records.’ Judicial authority to devise remedies and

enjoin agencies can only be invoked, under the

jurisdictional grant conferred by § 552.”); Judicial

Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924,

926 (D.C.Cir.2011) (“[U]nder FOIA, a federal court

may only order an agency to release “agency

records.”); Glick v. Dep’t of Army, 971 F.2d 766, *1

(D.C.Cir.1992) (per curiam) (affirming dismissal of

FOIA suit because “[a]ppellant does not allege that any

agency records have been improperly withheld, which

is a jurisdictional prerequisite to suit under the FOIA.”).

The courts have “an independent obligation to

determine whether subject-matter jurisdiction exists.”

Citizens for Responsibility and Ethics in Wash. v. U.S.

Dep’t of Homeland Sec., 532 F.3d 860, 862

(D.C.Cir.2008) (citing Nat’l Mining Ass’n v.

Kempthorne, 512 F.3d 702, 706 (D.C.Cir.2008)). Thus,

even though the parties have not raised this issue, the

Court is obligated to determine, sua sponte, whether the

records in dispute are “agency records.”

A. NSPD 54 Is Not An Agency Record *5 The defendant withheld NSPD 54 under Exemption 5 and, consequently, the majority of the parties’ briefing centers on whether this exemption’s incorporation of the “presidential communications privilege” applies to NSPD 54.6 See, Pl.’s Mem. Opp’n to Def.’s Mot. Summ. J. and in Supp. Pl.’s Cross–Mot. for Summ. J. (“Pl.’s Mem.”) at 10–21, ECF No. 14; Def.’s Mem. at 7–12. In doing so, the parties gloss over the question of whether NSPD 54 is an “agency record” at all, which is a threshold question the Court must resolve before turning to the applicability of
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any exemptions. See 5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”). Under this Circuit’s recent opinion in Judicial Watch, the answer to this critical question as to NSPD 54 is no, rendering all other arguments about the applicability of Exemption 5 moot.

6

Exemption 5 incorporates standard discovery privileges

which would normally exempt documents from

production in the course of civil litigation. See NLRB

v. Sears, Roebuck & Co., 421 U.S. 132, 148–49 (1975).

The “presidential communications privilege” is one of

those discovery privileges incorporated into Exemption

5. See Judicial Watch, 726 F.3d at 229 n. 25 (quoting

Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473

F.3d 312, 321 (D.C.Cir.2006)); Citizens for

Responsibility and Ethics in Wash. v. U.S. Dep’t of

Homeland Sec., 532 F.3d 860, 865 (D.C.Cir.2008).

[11]The test for whether a record is an “agency record” for the purposes of the FOIA is whether an agency (1) “either create[s] or obtain[s]” the record and (2) is “in control of the requested materials at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The defendant has admitted that it “obtained” NSPD 54. See Janosek Decl. ¶ 31 (“[NSPD 54] was issued to a number of high ranking Presidential advisers, Cabinet officials, and agency heads including (inter alia ) the Director of the NSA.”); Def.’s Mem. in Opp’n to Pl.’s Cross–Mot. Summ. J. and Reply in Supp. of Def.’s Mot. Summ. J. (“Def.’s Reply”) at 17, ECF No. 16 (“NSA has possession of a copy of NSPD 54”). Thus, the first prong of the Tax Analysts test is met. Yet, “each [prong] must be satisfied for requested materials to qualify as agency records.” Tax Analysts, 492 U.S. at 144, 109 S.Ct. 2841. The second, “control” prong is ultimately fatal to the plaintiff’s request.
[12]Judicial Watch established that records originating with the President are subject to the modified “control” test set forth in United We Stand, which had previously only been applied to records originating with Congress. See 726 F.3d at 224. Under this “control” test, a record is under the control of an agency, thus making it an “agency record,” if the agency has the “ability to use or dispose of the record as it sees fit.” United We Stand, 359 F.3d at 600. At issue in Judicial Watch were the “official visitors

logs and/or other records concerning visits to the White House” for a specified period of time. Judicial Watch, 726 F.3d at 214. The D.C. Circuit found that the logs were in the possession of the United States Secret Service, meaning it “obtained” them, but the Secret Service could “use the records for only two limited purposes” and had to transfer the records to the White House and purge them from its computer systems after sixty days. Id. at 218–19. The court found that because the White House, an entity not subject to the FOIA, “has manifested its intent to control the entirety of the [visitors logs],” the United We Stand test’s application militated against a finding that the logs were “agency records” under the FOIA. See id. at 223–24.
[13]As applied to the instant case, the parties do not dispute that NSPD 54 originated with the President or the NSC. See Janosek Decl. ¶ 30 (“This document did not originate with NSA, but rather, it originated with the National Security Council (NSC) and Homeland Security Council (HSC).”); Pl.’s Mem. at 3 (“President George W. Bush issued NSPD 54, but did not release the text of the directive to the public.”). The law in this Circuit is clear that the NSC is not an “agency” for the purposes of the FOIA. See Armstrong v. Exec. Office of the President, 90 F.3d 553, 559 (D.C.Cir.1996) cert. denied 520 U.S. 1239, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997); see also Elec. Privacy Info. Ctr. v. NSA, 795 F.Supp.2d 85, 91 (D.D.C.2011). This is so because the NSC is similar to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President,” which the Supreme Court has held are not an “agency” for the purposes of the FOIA. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 (1980). Indeed, in Kissinger, the Supreme Court found that papers and notes generated by the future Secretary of State were not “agency records” because they were created while he was functioning as “Assistant to the President.” Id. at 156, 100 S.Ct. 960.
*6 The parties also do not dispute that the President placed significant limits on the distribution of NSPD 54. See Janosek Decl. ¶ 31; Pl.’s Mem. at 3; see also Ronan Decl. ¶ 7 (“The directive was originally accompanied by a transmittal memo from a Special Assistant to the President ... [that] emphasized NSPD–54’s close-hold nature and the need to safeguard its content, a need that continues to this day.”). For instance, only specific, high-ranking Presidential advisors were given the directive, and they themselves could only distribute the directive to those within their agencies with a “need to know.” Janosek Decl. ¶¶ 32–33. Indeed, the defendant’s
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declarant notes that “[e]xplicit White House permission is further required before redistributing NSPD–54 to overseas organizations within the Agency or to other Governmental agencies/organizations,” id. ¶33, and the memorandum accompanying NSPD 54 “makes explicitly clear that a recipient of NSPD 54 should not distribute or disclose the document without express permission from the White House.” Id. ¶32 (emphasis in original).
In assessing the level of control exercised by a FOIA-exempt entity, such as Congress or the Office of the President, the D.C. Circuit has considered several indicia. In Goland v. CIA, 607 F.2d 339 (D.C.Cir.1978), the D.C. Circuit rejected a plaintiff’s argument that a classified transcript of a hearing before Congress in the CIA’s possession was an “agency record” merely because it was in the CIA’s possession. See Goland, 607 F.2d at 343, 345. The court elaborated that, notwithstanding an agency’s possession, courts must look to whether a FOIA-exempt entity retains control of the document. See id. at 345–47. The court found that because, when the CIA received the document, it “bore the typewritten marking ‘Secret’ on its interior cover page,” and that the CIA “retains a copy of the Transcript for internal reference purposes only, to be used in conjunction with legislation concerning the Agency and its operations,” “Congress’ intent to retain control of the document is clear.” Id. at 347–48. The court added that “[i]n ascertaining whether a record in the possession of an agency is nonetheless a congressional document, a court will of course accord due weight to the factors that influence us in this case, including (1) Congress’ clear intent to exempt congressional documents from disclosure under FOIA; (2) Congress’ clear prerogative to prevent disclosure of its own confidential materials; and (3) the danger of inhibiting the legislative and judicial branches from making their records available to the executive branch.” Id. at 348 n. 48.
Similarly, in United We Stand, the D.C. Circuit found that a letter sent to the IRS by the congressional Joint Committee on Taxation was not an “agency record” because the document itself stated: “This document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.” United We Stand, 359 F.3d at 600–01. The court went on to find that the agency’s response to the letter must be released under the FOIA as an agency record, with portions redacted so as not to disclose the nature of Congress’ request. Id. at 602–03.

By contrast, where the FOIA-exempt entity has conveyed documents to an agency without clear limits on their use or further dissemination, the D.C. Circuit has found the records to be under agency control. In Holy Spirit Association for the Unification of World Christianity v. CIA, 636 F.2d 838 (D.C.Cir.1980) (“Holy Spirit ”), thirty-five documents containing “correspondence and memoranda originated by one of four congressional committees that investigated various aspects of Korean–American relations between 1976 and 1978” were requested under the FOIA from the CIA, which had possession of the documents. 636 F.2d at 840, vacated in part on other grounds by Central Intelligence Agency v. Holy Spirit Association of the Unification of World Christianity, 455 U.S. 997, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982). The court contrasted the treatment of the requested records with the treatment of three “sealed cartons of additional congressional documents” transferred to the CIA “for safekeeping” at around the same time that were “accompanied by a memorandum from the House Committee on International Relations indicating that the Committee retained jurisdiction over the documents, that the documents contained classified information, and that access to the files was limited to those with authorization from the Clerk of the House.” Id. at 842. Unlike the three sealed cartons of documents, the thirty-five records at issue in Holy Spirit were not accompanied by any instructions and the agency’s declarant made “clear that only some congressional documents transferred to the CIA contain classified information or details of intelligence activities.” Id. at 841–42. The court found that the thirty-five records released to the CIA by Congress without “some clear assertion of congressional control ... either in the circumstances of the documents’ creation or in the conditions under which they were sent to the CIA” were “agency records” for the purposes of the FOIA. Id. at 842.
*7 Likewise, in Paisley v. CIA, 712 F.2d 686 (D.C.Cir.1983), the D.C. Circuit found that documents transferred from the Senate Select Committee on Intelligence to the FBI and CIA pertaining to the shooting death of a former employee were “agency records” because the Committee “affixed no external indicia of control of confidentiality on the faces of the documents,” nor were the “transcripts of testimony [contained in the documents] conducted under any special conditions of secrecy.” Paisley, 712 F.2d at 694. Additionally, the court found that even letters from the Committee to the agencies at issue indicating “the Committee’s desire to prevent [the documents’] release without its approval” were insufficient to indicate that Congress retained
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control because they were “too general and sweeping to provide sufficient proof, when standing alone, of a specific intent to transfer these five ... documents to the FBI and the CIA for a ‘limited purpose and on condition of secrecy.’ ” Id. at 695 (quoting Goland, 607 F.2d at 348 n. 48).

Thus, for the purposes of determining the indicia of control evidenced by the FOIA-exempt entity, the D.C. Circuit has consistently looked to the intent of the entity manifested at the time of transfer and the clarity of that intent with respect to the documents subject to the FOIA request.
The D.C. Circuit in Judicial Watch, in applying the United We Stand control test to the Office of the President, found that “the indicia of White House control in [Judicial Watch ] are even stronger than the indicia of congressional control in United We Stand.” Judicial Watch, 726 F.3d at 223. By contrast to the indicia in United We Stand, where Congress had asserted only a “limited scope of confidentiality and hence asserted control over only a limited subset of documents,” the White House in Judicial Watch had “manifested its intent to control the entirety of the [visitors logs at issue], all of which it expects the Secret Service to transfer to it.” Id. That control was manifested by, inter alia, the signing of a Memorandum of Understanding between the White House and the Secret Service instructing that the logs were to be used “for two limited purposes,”7 and were to be transferred to the White House and erased from the Secret Service’s computer servers every sixty days. See id. at 212. The Memorandum of Understanding also expressly provided that “[a]ny information provided to the Secret Service for the creation of [the logs] is provided under an express reservation of White House control.” Id. at 223 (internal quotation marks omitted).

7

The Secret Service was only to use the logs to “perform

a background check on the visitor, and to verify the

visitor’s admissibility at the time of the visit.” Judicial

Watch, 726 F.3d at 212.

[14] [15]In the instant case, Judicial Watch applies a fortiori. The White House has manifested its intent to control the entirety of NSPD 54 and its dissemination even within agencies to which the document was distributed, see Janosek Decl. ¶ 33, a level of control not present in Judicial Watch. Similar to the records in United We Stand and Goland, NSPD 54 was distributed to agencies with an

accompanying memorandum that “forbids ... intra-agency distribution except on a need to know basis,” and directs that “all public requests for disclosure of NSPD–54” be referred to the NSC and Homeland Security Council (“HSC”). Janosek Decl. ¶¶ 32–33. Indeed, the memorandum made clear that “a recipient of NSPD 54 should not distribute or disclose the document without the express permission of the White House.” Id. ¶ 32 (emphasis in original). NSPD 54 is decidedly unlike the agency-controlled documents in Paisley and Holy Spirit, where the FOIA-exempt entity, Congress, placed little or no restrictions on the documents once they were transferred to the agencies. Thus, under the United We Stand test, the defendant has shown a sufficiently “clear ... expression of [White House] intent to control” NSPD 54, making it a non-agency record for the purposes of the FOIA.8 See 5 U.S.C. 552(a)(4)(B). Consequently, as it pertains to NSPD 54, summary judgment is granted to the defendant and denied to the plaintiff.

8

The impact of Judicial Watch remains unclear

regarding the extent to which the President may make

policy decisions and issue directives to Executive

branch agencies outside the public eye and beyond the

reach of the FOIA, which “is broadly conceived ... to

permit access to official information long shielded

unnecessarily from public view ... [with] a judicially

enforceable public right to secure such information

from possibly unwilling official hands.” See Rose, 425

U.S. at 361, 96 S.Ct. 1592. The plaintiff argues

convincingly for narrowly construing the scope of

Exemption 5 and the presidential communications

privilege because “the public will be directly affected

by the exercise of the government’s authority”

embodied in NSPD 54. Pl.’s Mem. at 21; id. at 13–14;

see also Judicial Watch, Inc. v. U.S. Dep’t of Justice,

365 F.3d 1108, 1116 (D.C.Cir.2004) (noting the D.C.

Circuit has “caution[ed] against the dangers of

expanding to a large swath of the executive branch a

privilege that is bottomed on a recognition of the

unique role of the President”) (quoting In re Sealed

Case, 121 F.3d 729, 752 (D.C.Cir.1997) (internal

quotation marks omitted)). As the instant case

demonstrates, however, under Judicial Watch, a

President need not invoke the presidential

communications privilege—or any other enumerated

exemption—to avoid disclosure pursuant to the FOIA

of records for which he or she has clearly exerted

efforts to retain control and limit dissemination “in the

course of” “the carrying out of the constitutional,

statutory, official [and] ceremonial duties of the

President.” Judicial Watch, 726 F.3d at 228 (quoting

the definition of “Presidential records” in the

Presidential Records Act, 44 U.S.C. § 2201(2)). This

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result is difficult to reconcile with the D.C. Circuit’s rejection in Citizens for Responsibility and Ethics in Washington v. United States Department of Homeland Security, 532 F.3d 860 (D.C.Cir.2008), of the idea that “the President should never have to assert executive privilege in the Exemption 5 context because doing so is simply too burdensome” noting that “can’t be right.” 532 F.3d at 867 (emphasis in original). Nevertheless, Judicial Watch appears to create an alternative mechanism for the President to keep records secret without resorting to a FOIA exemption.
B. Application Of Exemption 5 To NSPDs And Their Predecessors *8 Although the Court finds that NSPD 54 is not an agency record under the changed legal landscape created by Judicial Watch, the determination not to release a NSPD is consistent with the few FOIA cases to have previously addressed this issue. It is first necessary to briefly describe the history of these national security records before discussing the way they have been addressed in prior court decisions.
1. National Security Instruments
NSPD 54 is an example of a type of national security document that began with the formation of the NSC in 1947. See HAROLD C. RELYEA, CONG. RESEARCH SERV., CRS NO. 98– 611, PRESIDENTIAL DIRECTIVES: BACKGROUND AND OVERVIEW at CRS–8 (2007) (“PRESIDENTIAL DIRECTIVES”). What started as “policy papers” prepared by the NSC’s members and staff eventually became documents signed by the President mandating operating policy. Id. at CRS–8–9. “In general, they were not required to be published in the Federal Register, were usually security classified at the highest level of protection, and were available to the public after a great many years had elapsed, usually at the official library of the President who had approved them.” Id. at CRS–9.
These national security documents have been known by a series of titles as different Presidents have called them by different names, including NSC Policy Papers, National Security Action Memoranda, National Security Study Memoranda, Presidential Review Memoranda, and Presidential Decision Directives. Id. at CRS–9–11.

President George W. Bush referred to them as National Security Presidential Directives. Id. at CRS–12. The secretive nature of these documents is made apparent by the fact that the public only learns of them once they are released and can only guess at how many each President has issued. See id. at CRS–1 1 (“While the number of NSDs issued by President [George H.W.] Bush remains officially secret, an October 21, 1991, directive concerning single scope security background investigations was designated NSD–63.”). All of them are generated and controlled by the President and NSC staff. Id. at CRS–9–12.9

9

The plaintiff makes an appealing, but ultimately

unavailing, argument that allowing the withholding of

NSPD 54 under an expansive view of the presidential

communications privilege would allow “documents that

will have significant and wide-spread impact [to][ ] be

kept totally hidden” and “bring about the very dangers”

of “allow[ing] for the creation of ‘secret law,’ the very

thing that the FOIA seeks to prevent.” Pl.’s Mem. at 15;

see also Pl.’s Reply at 10 (“By labeling NSPD 54 a

simple ‘communication,’ the NSA mischaracterizes the

significance of the document and would encourage

expansion of secret law.”). Indeed, the D.C. Circuit has

cautioned that Congress “indicated unequivocally that

the purpose of [FOIA] was to forbid secret law. And

substantive declarations of policy are clearly ‘law’

within the meaning of that prohibition.” Sterling Drug,

Inc. v. FTC, 450 F.2d 698, 713 (D.C.Cir.1971) (

Bazelon, C.J., concurring in part and dissenting in part)

(emphasis in the original). That being said, Judicial

Watch binds this Court.

2. National Security Instruments In The Courts
This is not to say, however, that no NSC directives have ever been released to the public. For instance, in Los Angeles Times Communications LLC v. United States Department of the Army, 442 F.Supp.2d 880 (C.D.Cal.2006), the Department of the Army included a copy of a NSPD dated May 11, 2004 “regarding United States government operations in Iraq” as part of a declaration in a FOIA case seeking other information about government contractors operating in Iraq. 442 F.Supp.2d at 891 n. 18. Similarly, in Schreibman v. United States Department of Commerce, 785 F.Supp. 164 (D.D.C.1991), the National Institutes of Standards and Technology (“NIST”) provided a copy of a “Presidential
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directive establishing data security policy and standards” voluntarily in response to a FOIA request. 785 F.Supp. at 165.
*9 By contrast to these examples of voluntary disclosure of Presidential directives, in two cases where FOIA requests directly sought such instruments, the requests were rejected. In Center for National Security Studies v. Immigration and Naturalization Service, No. 87–2068, 1990 WL 236133 (D.D.C. Dec. 19, 1990), the plaintiff sought documents under the FOIA pertaining to the “Alien Border Control Committee,” which was a “multi-agency task force formed to address the identification and removal of suspected alien terrorists” under the Reagan Justice Department. 1990 WL 236133 at *1 (internal quotation marks omitted). Among the responsive documents the Department of Justice located was National Security Decision Directive10 207, which the defendant withheld in its entirety under FOIA Exemption 1 for classified documents. Id. at *2; see 5 U.S.C. § 552(b)(1). Since the plaintiff produced no evidence of bad faith on the part of the defendant in its “predictions of harm” to national security if the Directive were released and because such predictions were “entirely plausible and sufficiently descriptive to substantiate an exemption 1 claim,” the court in Center for National Security Studies granted summary judgment to the defendant and did not order release of the Directive. Id. at *3.

10

This is the name given to NSC policy papers by

President Reagan. SeePRESIDENTIAL DIRECTIVES

at CRS–11.

In Halperin v. National Security Council, 452 F.Supp. 47 (D.D.C.1978), the plaintiff sought disclosure of a “compilation of the number and exact title of each National Security Study Memoranda” and “National Security Divisional Memoranda” issued during a specific period of time under the Nixon Administration. Halperin, 452 F.Supp. at 48. These lists of national security instruments generated by the Nixon NSC and some of the individual titles on the list were classified as “Secret.” Id. at 48–49. The defendant withheld the lists in their entirety under Exemption 1 and Exemption 5 to the FOIA. Id. at 49. The court in Halperin found that the lists were properly classified and non-segregable under Exemption 1 and granted summary judgment to the defendant. Id. at 52. Since the court decided the issue based solely on Exemption 1, it expressly declined to address the applicability of Exemption 5. Id. at 49.

These cases indicate that NSPD 54 is the type of document that is generally not ordered disclosed under the FOIA. Such national security instruments appear to have only been released voluntarily by the President or NSC that created them, or their release has been approved after a substantial period of time has passed, typically through Presidential libraries. See PRESIDENTIAL DIRECTIVES at CRS–9. Although the plaintiff in the instant case has made strong arguments as to why the public has an interest in the release of NSPD 54, precedent counsels that such documents have not been found releasable under the FOIA.11 In this respect, NSPD 54 is similar in kind to the records at issue in Judicial Watch, where the circumstance deemed “most important” in bolstering the conclusion that those White House records were beyond the reach of FOIA, was that the court was “not confronted with an attempt to protect information that would otherwise be subject to FOIA.” 726 F.3d at 232.

11

Since NSPD 54 is not an “agency record” for the

purposes of the FOIA, the Court does not opine as to

whether the presidential communications privilege

encompassed in Exemption 5 is coextensive with the

privilege as it is asserted in the civil discovery context,

as the parties have disputed in their briefing.

* * * In Judicial Watch, the D.C. Circuit responded to the “fear that this case will open the floodgates to White House efforts to circumvent FOIA,” by clarifying that its holding was not that “any record touching on White House communications were necessarily exempt from FOIA.” 726 F.3d at 231 (emphasis in original). The court pointed to three circumstances that limited the application of its holding: first, that “no deference” was given to a Memorandum of Understanding (“MOU”) between the White House and the agency stating that the White House retained “exclusive legal custody and control” of the records at issue. Id. (emphasis in original). While not acceding to the legal conclusion articulated in the MOU, the court did, however, rely on “the way in which both parties have historically regarded and treated the documents.” Id. Similarly, in the instant case, the White House’s explicit instructions regarding the limited use and dissemination of NSPD 54 only with the White House’s approval, appears to satisfy this circumstance showing that the White House took clearly articulated steps to retain control over the document.
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Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

*10 The second circumstance cited by the court in Judicial Watch as limiting its holding is that potential release of the records at issue under the FOIA would “put the President on the horns of a dilemma between surrendering his confidentiality and jeopardizing his safety,” which the court found to be “comparable to” the “presence of [ ] unacceptable choice,” faced by Congress in United We Stand and Goland. Id. at 231–32. In Goland, the D.C. Circuit noted the conflict between Congress’ “constitutional prerogative of maintaining secrecy” in its communications with agencies over which it “exercises oversight authority” and a finding that any records in possession of an agency are automatically subject to the FOIA, which the D.C. Circuit noted would cause “an impairment of [Congress’] oversight role.” Goland, 607 F.2d at 346. In United We Stand, where the documents at issue were created by an agency in response to a Congressional request, Congress evinced a clear intent to keep its request to the agency secret as part of “the Joint Committee[’s] belie[f] that confidentiality is critical to its work.” United We Stand, 359 F.3d at 602. In the instant case, the defendant notes that NSPD 54 requested that “his advisers ... submit follow-up reports,” Def.’s Mem. at 10, and confidentiality was necessary because the release of NSPD 54 “would ‘limit the President’s ability to communicate his decisions privately, thereby interfering with his ability to exercise control over the executive branch.’ ” Id. (quoting In re Sealed Case, 121 F.3d at 745–46). This protection of confidentiality and the President’s role in overseeing executive agencies is the same type of conflict the D.C. Circuit was concerned with in Goland, United We Stand, and Judicial Watch.
Finally, the last circumstance, deemed to be the “most important,” limitation on the Judicial Watch holding is that the requested records “involves a category of documents that effectively reproduces a set of records that Congress expressly excluded from FOIA’s coverage,” id. at 232, as detailed in the legislative history for the 1974 FOIA amendments, id. at 224–25 (discussing the Conference Report, which stated that the definition of an “agency” subject to FOIA does not include the Office of the President or the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President). The White House visitor logs at issue in Judicial Watch “would not even arguably be subject to the Act, but for the President’s need for Secret Service protection.” Id. at 232. Thus, the necessity of sharing with agents of the Secret Service the otherwise FOIA-exempt White House visitor requests did not pierce the confidentiality that the President was otherwise

entitled to enjoy in those records. Similarly, here, the necessity of the President of communicating to a limited group of high-ranking Executive branch officials any instructions and guidance contained in NSPD 54 in order to effectuate the President “carrying out the constitutional, statutory, or other official or ceremonial duties of the President,” appears to fall squarely within the same category of documents found to be outside the reach of FOIA in Judicial Watch. Indeed, the question in Judicial Watch appears to be a closer one than the question here, as the documents in Judicial Watch were created by an agency subject to the FOIA, namely, the Secret Service, whereas in the instant case NSPD 54 was created by a FOIA-exempt entity itself, namely, the NSC, and merely distributed to agencies subject to the FOIA.
In short, none of the limitations on the holding in Judicial Watch appear to distinguish this case or make inapplicable the control test now required in determining whether NSPD 54 is an “agency record.”
C. The Defendant Properly Asserted Exemption 1 As To The Remaining Documents The plaintiff challenges the defendant’s redaction of IAD Management Directive 20 and NSA/CSS Policy 1–58 under Exemption 1 to the FOIA, which provides that records “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order” are exempt from mandatory disclosure under the FOIA. 5 U.S.C. § 552(b)(1)(A–B). The plaintiff argues that “the agency has not established that NSPD 54 and the related records are properly classified.” Pl.’s Mem. at 22. As discussed in Part III.A, NSPD 54 is a non-agency record and not covered by the FOIA. Since the remaining two documents did not originate with a FOIA-exempt entity and are “agency records,” the defendant bears the burden of showing that they were appropriately redacted. See Assassination Archives & Research Ctr., 334 F.3d at 57 (D.C.Cir.2003).
*11 The plaintiff’s challenge to the withheld portions consists of a conclusory statement that “[t]he NSA presents no evidence that Ms. Ronan and Ms. Janosek have been delegated classification authority by the President or Vice President, or an agency head that was first delegated such authority by the President or Vice President” as required by Executive Order 13526 to confer classification authority. Pl.’s Mem. at 24. This
10

Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

challenge fails to address the unequivocal statement by both declarants that they have been delegated classification authority under Executive Order 13526. See Ronan Decl. ¶ 1; Janosek Decl. ¶ 20. The plaintiff has offered no evidence to cast doubt upon these sworn declarations.
[16] [17]In reviewing withholdings under Exemption 1, “courts must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” Wolf, 473 F.3d at 374 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984)) (emphasis in original, internal quotation marks omitted). When provided with an affidavit that “describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” summary judgment is warranted for the agency. Miller, 730 F.2d at 776 (internal quotation marks and citations omitted). Here, the plaintiff does not challenge the agency’s purported justification for the classification, but rather that the individual declarants did not have adequate classification authority. See Pl.’s Mem. at 23–24. Considering the substantial deference the Court must show to agency declarations when Exemption 1 is claimed, and in the absence of any evidence other than a bald assertion that the declarants have not proven that they are valid classification authorities, despite their sworn affidavits to the contrary, the Court grants summary judgment to the defendant on its Exemption 1 withholdings in IAD Management Directive 20 and NSA/CSS Policy 1–58.12

12

To the extent the plaintiff challenges the defendant’s

withholdings under Exemption 3, the plaintiff’s

argument is entirely predicated upon the fact that the

“records described ... are not properly classified.” See

Pl.’s Mem. at 25. Since the Court has found the

plaintiff’s argument on that score to be unpersuasive,

the plaintiff’s Exemption 3 argument is similarly

unavailing.

D. The Defendant Construed The Plaintiff’s FOIA Request Too Narrowly [18]Finally, the plaintiff argues that the defendant’s “interpretation of [the plaintiff’s] plainly worded FOIA Request is contrary to the FOIA and relevant case law.” In essence, the plaintiff argues that the defendant

improperly narrowed its search when responding to the second part of the plaintiff’s requests to search only for records distributed “to the NSA” rather than “to any federal agency charged with implementing the cybersecurity scheme,” as stated in the plaintiff’s request. Pl.’s Reply Supp. Pl.’s Cross–Mot. Summ. J. (“Pl.’s Reply”) at 12, ECF No. 17; see also Janosek Decl. Tab A at 5. The defendant’s declarant gives credence to the plaintiff’s argument, as the Janosek Declaration notes the defendant “searched for responsive records by giving plain meaning to Plaintiff’s request and thus searched for ‘Executing protocols’ that were ‘distributed to’ to [sic] the NSA—meaning, protocols that emanated from outside the NSA and were ‘distributed to’ NSA.” Janosek Decl. ¶ 36.
The plaintiff’s request sought “the full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation.” Janosek Decl. Tab A at 5 (emphasis added). There is no dispute that the defendant is one of the agencies “in charge of” the CNCI’s implementation, and, consequently, the agency’s search for pertinent records “distributed to the NSA” fell within the request’s parameters. Yet, the plaintiff is correct that the defendant “may be in possession of the CNCI or related records that were issued to the FBI, the CIA, or other federal agencies,” either by an entity other than the defendant or by the defendant itself. See Pl.’s Reply at 12. Such documents, under the plain meaning of the plaintiff’s FOIA request, are responsive to the request.13

13

The plaintiff also asserts that NSPD 54 is responsive to

the second part of the plaintiff’s FOIA request and

therefore should have been deemed a responsive record

to this portion of the request. See Pl.’s Mem. at 26. The

defendant admits as much, Def.’s Reply at 17, but, as

discussed supra, this document is properly withheld

because it is not an “agency record” for the purposes of

the FOIA. Thus, the plaintiff’s argument that NSPD 54

is responsive to the second portion of its request if it

were an “agency record” is technically correct, but does

not yield a different result.

*12 [19]The plaintiff is correct that “an agency ... has a duty to construe a FOIA request liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). By limiting its interpretation of records responsive to the plaintiff’s requests only to records emanating from outside the defendant agency, the defendant violates this basic FOIA convention. If the
11

Electronic Privacy Information Center v. National Security Agency, --- F.Supp.2d ---- (2013)

defendant itself generated an executing protocol for the CNCI and distributed it to other relevant federal agencies, those records were “distributed to the agencies in charge of [the CNCI’s] implementation.”
Notably, the plaintiff is not asserting that the defendant performed an inadequate search for responsive records. See Pl.’s Mem. at 27 (“[The plaintiff] has not challenged, and does not purport to challenge here, the sufficiency of the [defendant’s] search for agency records.”). Instead, the plaintiff is arguing that the defendant “searched for, located, reviewed, but unlawfully withheld as ‘unresponsive’ records that are responsive to Category 2 of [the plaintiff’s] FOIA Request.” Id. Thus, the defendant is directed to produce to the plaintiff records discovered responsive to the second part of the plaintiff’s request, including executing protocols in the defendant’s possession that were distributed to other relevant federal agencies, that were received by the NSA or distributed by the NSA, unless those records are properly withheld, in whole or in part, under exemptions to the FOIA.
IV. CONCLUSION The primary document at issue here, NSPD 54, is not an agency record for the purposes of the FOIA under the Judicial Watch standard and therefore need not be disclosed in response to a FOIA request. In addition, the

plaintiff’s challenges to the defendant’s redactions of IAD Management Directive 20 and NSA/CSS 1–58 under Exemptions 1 and 3 are rejected. The plaintiff is correct, however, that the defendant improperly narrowed its search for responsive records to the second portion of the plaintiff’s FOIA requests to only those records distributed to the NSA, rather than to all agencies charged with implementing the CNCI. Consequently, the defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part and the plaintiff’s Cross–Motion for Summary Judgment is GRANTED in part and DENIED in part. The defendant shall review its search to determine if any records found in that search are responsive to the plaintiff’s FOIA request, conforming its interpretation of that request to the instructions of this Court. After such review, the defendant shall supplement its production to the plaintiff with any responsive records or, in the alternative, submit a Vaughn index detailing what records or portions of records are being withheld and under what exemptions to the FOIA. The parties are instructed to jointly file a briefing schedule to facilitate the timely production of these documents and resolution of any disputes which may arise regarding their production.
An appropriate Order will accompany this Memorandum Opinion.
	  

12

 
 Case 1:10-cv-00196-BAH Document 28 Filed 10/21/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. NATIONAL SECURITY AGENCY,

Civil Action No. 10-196 (BAH) Judge Beryl A. Howell

Defendant.

ORDER Upon consideration of the defendant’s Motion for Summary Judgment, ECF No. 12, and the Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 13, the related legal memoranda in support and in opposition, the declarations submitted, and the entire record herein, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that the defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part; and it is further ORDERED that the plaintiff’s Cross-Motion for Summary Judgment is GRANTED in part and DENIED in part; and it is further ORDERED that the defendant review its search to determine if any records found in that search are responsive to the plaintiff’s FOIA request, conforming its interpretation of that request to the instructions of this Court. After such review, the defendant shall supplement its production to the plaintiff with any responsive records or, in the alternative, submit a Vaughn index detailing what records or portions of records are being withheld and under what exemptions to the FOIA; and it is further

Case 1:10-cv-00196-BAH Document 28 Filed 10/21/13 Page 2 of 2

ORDERED that, by November 4, 2013, the parties jointly file a proposed schedule to

facilitate the timely production of records responsive to the second portion of the plaintiff’s

FOIA request and resolution of any disputes which may arise regarding their production; and it is

further

ORDERED that the plaintiff’s Motion for an Oral Hearing is denied as moot.

SO ORDERED Date: October 21, 2013

Digitally signed by Beryl A. Howell DN: cn=Beryl A. Howell, o=District Court for the District of Columbia, ou=District Court Judge, email=howell_chambers@dcd.usco
__________________________ urts.gov, c=US Date: 2013.10.21 17:13:24 -04'00'
BERYL A. HOWELL
United States District Judge

2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER
Plaintiff, v. NATIONAL SECURITY AGENCY, Defendant.

Civil Action No. 10-196 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION Pending before the Court is the plaintiff’s Motion for Attorneys’ Fees and Costs (“Pl.’s Mot.”), ECF No. 44. The plaintiff, the Electronic Privacy Information Center (“EPIC”), seeks attorneys’ fees as a prevailing party pursuant to the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552(a)(4)(E). The defendant, the National Security Agency (“NSA”), challenges the plaintiff’s entitlement to attorneys’ fees and, in the alternative, challenges the reasonableness of the amount requested by the plaintiff, seeking a reduction in fees as a sanction. See Def.’s Opp’n to Pl.’s Mot. for Attys. Fees and Costs (“Def.’s Opp’n”) at 5, ECF No. 45. For the reasons set forth below, the plaintiff’s motion is granted in part and denied in part. I. BACKGROUND The facts of this case have been set forth in this Court’s prior Memorandum Opinion and do not need to be repeated here. See EPIC v. NSA (EPIC I), 988 F. Supp. 2d 1, 4–7 (D.D.C. 2013). In EPIC I, this Court held that a partially classified document requested by the plaintiff under the FOIA, National Presidential Security Directive (“NPSD”) 54, which sets forth the U.S. Government’s cybersecurity polices, was not an “agency record” within the meaning of FOIA

1

and, therefore, the Court granted summary judgment to the defendant regarding the withholding in full of NSPD 54. See id. at 12.
The plaintiff timely appealed that decision in December 2013. Notice of Appeal at 1, ECF No. 32. While the appeal was pending, on January 27, 2014, the plaintiff “accepted a Rule 68 Offer of Judgment for $3,500 from the [defendant].” Pl.’s Mot. at 4. The Offer of Judgment reads as follows, in pertinent part:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Defendant National Security Agency hereby offers to allow judgment to be taken against it, in the amount of $3,500.00, in full resolution of all claims of Plaintiff Electronic Privacy Information Center for all costs, including attorney’s fees, incurred in this action. This offered amount includes all costs accrued, including all attorney’s fees and all fees on fees. Def.’s Offer of Judgment, Jan. 27, 2014 (the “January Judgment”)1 at 1, ECF No. 36-1. The plaintiff accepted the Offer of Judgment on February 9, 2014, Def.’s Notice of Acceptance of Offer of Judgment at 1, ECF No. 36, and the judgment with the above language was entered by the Clerk of Court on February 11, 2014. Despite the offer and acceptance of judgment, the plaintiff’s appeal continued in the D.C. Circuit, with the plaintiff filing its initial appellant brief in March 2014. Def.’s Opp’n at 4. That appeal effectively ended on June 5, 2014, when the defendant released “an unclassified version of NSPD 54” to the plaintiff. Id. Four days later, the parties filed a joint motion to vacate the portion of NSC I holding that NSPD 54 was not an agency record, which motion was subsequently granted by the D.C. Circuit. Pl.’s Mot. at 4–5.
1 Although the defendant refers to the January Judgment as the “February Judgment,” see, e.g., Def.’s Opp’n at 8, the Offer of Judgment dated January 27, 2014 will be referred to as the “January Judgment” throughout this Memorandum Opinion, since the January Judgment encompasses all fees and costs accrued as of January 27, 2014.
2

Following vacatur, the plaintiff filed the pending motion, seeking $68,354.01 in attorneys’ fees and $730.28 in costs. Pl.’s Reply Def.’s Opp’n Pl.’s Mot. (“Pl.’s Reply”) at 22, ECF No. 46 (including $9,786 in “fees on fees for time spent preparing [the plaintiff’s] Reply”). II. LEGAL STANDARD
A. Settlement Agreements The D.C. Circuit interprets settlement agreements under the local law of the jurisdiction where the settlement agreement is to be enforced. See Makins v. District of Columbia, 277 F.3d 544, 548 (D.C. Cir. 2002) (“[W]e adopt local law in determining whether a settlement agreement should be enforced.”). The District of Columbia treats settlement agreements as contracts. See Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 188 (D.C. 2009) (“[S]ettlement agreements are construed under general principles of contract law. Accordingly, we enforce a valid and binding settlement agreement just like any other contract.”) (internal quotation marks and citations omitted); see also Pub. Emps. for Envtl. Responsibility v. U.S. EPA, 926 F. Supp. 2d 48, 54 (D.D.C. 2013) (finding that a FOIA plaintiff was precluded from filing more FOIA requests because “[a] settlement agreement is a contract, and [plaintiff] is bound by the contract he signed”). District of Columbia contract law is an “objective law of contracts, meaning that the written language embodying the terms of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake.” Abdelrhman v. Ackerman, 76 A.3d 883, 888 (D.C. 2013) (internal quotation marks and citations omitted; brackets in the original). B. FOIA Fee Awards The FOIA authorizes the award of attorneys’ fees reasonably incurred by a plaintiff who is in litigation to obtain “the production of any agency records improperly withheld,” 5 U.S.C. §
3

552(a)(4)(B), when “the complainant has substantially prevailed,” id. at § 552(a)(4)(E)(i). The
D.C. Circuit has construed this statutory provision as “naturally divid[ing] the attorney-fee
inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee
‘entitlement.’” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir.
2011) (citing Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir.
2006)). Thus, to obtain attorneys’ fees under the FOIA, the plaintiff must demonstrate both
eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707,
710 (D.C. Cir. 2014); see also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir.
1984) (“[E]ligibility alone is not enough. . . . the complainant must [also] show that he or she is
‘entitled’ to an award.”).
1. Eligibility For Fees Award To satisfy the first requirement of eligibility for attorneys’ fees, a claimant must show
that he “substantially prevailed” in the underlying FOIA litigation. See 5 U.S.C. §
552(a)(4)(E)(i). The statute provides that the claimant “substantially prevail[ed]” by gaining
relief from either: “(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” Id. at § 552(a)(4)(E)(ii).2 This statutory text is a direct Congressional response to
2 The term “not insubstantial,” which was added as part of the FOIA amendments in the OPEN Government Act of 2007, is not defined in the statute. See Pub. L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. The House-passed version of these FOIA amendments did not use this term and, instead, provided that a claimant qualified for attorneys’ fees upon a “voluntary or unilateral change in position by the opposing party, in a case in which the complainant’s claim or defense was not frivolous.” H.R. Rep. No. 110-45, at 15 (2007) (Report by House Committee on Oversight and Government Reform). The Senate-passed version of the bill, which was ultimately enacted as the 2007 Act, adopted the current language, 153 CONG. REC. S15702 (2007), which the lead sponsor of the legislation, Senator Patrick Leahy, explained “would not allow the requester to recover attorneys’ fees if the requester’s claim is wholly insubstantial,” Id. at S15704 (statement of Sen. Leahy). Inquiry as to whether the claim is “not insubstantial” is “properly considered under the entitlement prong of the fee analysis, not the eligibility prong.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp. 2d 225, 233 (D.D.C. 2012) (citing Brayton, 641 F.3d at 526).
4

the D.C. Circuit’s rejection of the “catalyst theory”3 in determining whether FOIA plaintiffs were eligible for attorneys’ fees when an agency voluntarily turned over the records sought. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). After the Supreme Court’s landmark case of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), which largely invalidated the catalyst theory, the D.C. Circuit held that “a FOIA plaintiff has ‘substantially prevailed’ only if he has ‘been awarded some relief by [a] court, either in a judgment on the merits or in a court-ordered consent decree.’” Davis, 610 F.3d at 752 (quoting Oil, Chem. & Atomic Workers Int’l Union v. U.S. Dep’t of Energy, 288 F.3d 452, 456–57 (D.C. Cir. 2002)).
In the FOIA context, Congress restored the catalyst theory with the OPEN Government Act of 2007 (the “2007 Act”), which inserted the present text of 5 U.S.C. 552(a)(4)(E)(ii). Id. After the 2007 Act took effect, FOIA applicants were once again eligible for attorneys’ fees, even if they did not obtain a court order granting the relief sought, so long as the claim was “not insubstantial.” Id. Thus, whether the parties’ legal relationship changed, the sine qua non of attorneys’ fees eligibility in most other contexts, is not as significant in FOIA fee disputes. See id.
2. Entitlement To Fees Award If the plaintiff has “substantially prevailed and thus may receive fees . . . the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.” Brayton, 641 F.3d at 524 (emphasis in original) (quotation marks and citations omitted). “This circuit has long applied a multi-factor standard” involving
3 Under the catalyst theory, a party is a prevailing party eligible for attorneys’ fees if the party’s actions were a cause of the relief sought. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). This situation often arose in FOIA cases where an agency “voluntarily” released records after a lawsuit was filed but before judicial relief was granted. See id.
5

consideration of “[f]our non-exclusive factors:” “‘(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding’ of the requested documents.” McKinley, 739 F.3d at 711 (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)), superseded by statute, 5 U.S.C. § 552(a)(4)(E)(i), as recognized in Summers v. U.S. Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009)); see also Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995).
In Davy v. CIA, the D.C. Circuit noted that “no one factor is dispositive,” but this statement comes with the significant caveat that “if the Government’s position is correct as a matter of law, that will be dispositive.” 550 F.3d 1155, 1159, 1162 (D.C. Cir. 2008). “The sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax Analysts, 965 F.2d at 1094 (citing Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981)); see also Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C. Cir. 2008) (“Balancing these factors is a matter for the district court.”).
This four-factor entitlement test is not reflected in the text of the FOIA. See 5 U.S.C. § 552. For this and other reasons, Judge Kavanaugh has stated bluntly that the D.C. Circuit “should ditch the four-factor standard.” Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013) (Kavanaugh, J. concurring). Relying in part on Judge Randolph’s dissent in Davy, Judge Kavanaugh noted that “the four factors have no basis in the statutory text” and, indeed, “Congress’s decision not to include the four factors in the statutory text appears to have been deliberate.” Id. Moreover, Judge Kavanaugh described the first three factors as “incompatib[le] with the FOIA’s structure and purposes” and “so vague and malleable that they provide very little guidance to district courts.” Id. at 691–92.
6

Regardless of the wisdom in Judge Kavanaugh’s suggestion that the D.C. Circuit “should jettison the four-factor standard and adopt” a rule that “prevailing plaintiffs should receive attorney’s fees—with only a very narrow exception for ‘special circumstances’ such as bad faith by a prevailing plaintiff,” id. at 692 (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)), this Court is bound by Davy and its progeny, and must apply the four-factor test.
3. Computation Of Fee Award Determining the reasonable attorneys’ fees to which a prevailing party is entitled entails a three-part analysis: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’; and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). The fee applicant bears the burden of justifying the attorneys’ fees requested. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995) (“a fee applicant bears the burden of establishing an entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates”) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). The party seeking fees must submit evidence regarding “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the relevant community.” Id. Upon submission of such information, a presumption applies that the number of hours billed and the hourly rates are reasonable. Jackson v. District of Columbia, 696 F. Supp. 2d 97, 100–01 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F. Supp. 2d 169, 172 (D.D.C. 2010)). The burden then shifts to the defendant to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F. 3d at 1109–10 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982) (“Concerned Veterans”)).
7

III. DISCUSSION The defendant contends that the plaintiff was not a prevailing party for the purposes of
the FOIA and is therefore not entitled to attorneys’ fees at all. Def.’s Opp’n at 10–14. In the alternative, the defendant argues that (1) the plaintiff is foreclosed from seeking additional fees for any period of time prior to the January Judgment; and (2) the plaintiff is not entitled to all of the fees it seeks for the period after the January Judgment. Each argument is addressed in turn below.
A. The Plaintiff Is A “Prevailing Party” Eligible For Attorneys’ Fees The defendant contends that the plaintiff did not “substantially prevail” because “withholding [] NSPD 54 was correct as a matter of law,” based on this Court’s holding in EPIC I. Def.’s Opp’n at 11. The defendant is incorrect for two reasons. First, the portion of EPIC I setting out the legal basis for the defendant’s withholding of NSPD 54—i.e., that NSPD 54 was not an agency record subject to FOIA—was vacated at the joint request of the plaintiff and defendant. See D.C. Cir. Order at 1, ECF No. 38. Thus, the defendant’s contention that “[t]his Court’s legal determination that FOIA does not require the release of NSPD 54 stands,” Def.’s Opp’n at 11, is incorrect: that determination has been vacated. Second, even if the defendant were correct and EPIC I did show that the agency was correct to withhold NSPD 54 as a matter of law, such a finding would not affect the plaintiff’s eligibility for a fee award; it would affect the plaintiff’s entitlement for such an award. See Brayton, 641 F.3d at 525–26. The language of the statute is clear and reflects a generally practical consideration regarding whether a FOIA plaintiff obtained the relief it wanted, in the form of the release of the requested information: “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial,” qualifies a FOIA plaintiff as a prevailing party eligible for attorneys’ fees. See 5 U.S.C. § 552(a)(4)(E)(ii)(II); see also Petersen v. Gibson, 372 F.3d 862, 865 (7th Cir. 2004)
8

(holding that courts “must examine the practical impact of the judgment” to determine prevailing party status). This is precisely the situation in which the plaintiff finds itself: following the plaintiff’s appeal, the defendant voluntarily released NSPD 54 and agreed to request vacatur of the portion of this Court’s opinion that found the defendant to have acted in accordance with the law. See Def.’s Opp’n at 11. Thus, the plaintiff is a prevailing party eligible for attorneys’ fees. The defendant’s arguments regarding the whether the agency was “correct as a matter of law” in withholding NSPD 54 is more properly addressed in the Court’s review of the plaintiff’s entitlement to fees. See infra Part III.C.
B. The January Judgment Forecloses All Fees Prior To January 27, 2014 Although FOIA fees are generally governed by the four non-exclusive factors set forth in Tax Analysts, the plaintiff seeks $21,987.01 for fees and costs incurred in the pursuit of NSPD 54 on or before January 27, 2014, the date on which the defendant extended the Offer of Judgment that the plaintiff ultimately accepted. See Pl.’s Mot. Ex. 1 at 1–2, ECF No. 44-2 (“Bill of Fees and Costs” noting $15,777.01 in “District Court fees” not including “Fees on fees”); id. Ex. 3 at 1, ECF No. 44-4 (“D.C. Circuit Billing Records” noting $6,210.00 in fees on or before January 22, 2014). Therefore, the plaintiff’s request for any fees and costs incurred prior to the January Judgment are more properly considered under District of Columbia contract law, as part of a legal settlement. See Tsintolas Realty Co., 984 A.2d at 188. The plaintiff contends that the fees it requests now—those pertaining to NSPD 54 and incurred before the January Judgment—should not be considered part of the January Judgment because “this Court had ruled that the request for NSPD-54 was not properly before the Court.” Pl.’s Reply at 3. While the plaintiff adequately summarizes the Court’s holding in EPIC I regarding NSPD 54, as previously noted, that portion of the opinion was vacated. See D.C. Circ. Order at 1; Pl.’s Reply at 3 (citing D.C. Circuit Order). Whether NSPD 54 was an “agency
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record” for the purposes of FOIA was still “a live controversy” up to and until the defendant agency released the document. See D.C. Circuit Order at 1 (“As the agency has now released the document appellant sought, the appeal no longer presents a live controversy.”). Thus, the plaintiff’s contention that its litigation regarding the disclosure of NSPD 54 was “not properly before the Court” is incorrect as a matter of law. The fact that the Court concluded that this part of the plaintiff’s suit was not subject to a FOIA request does not mean litigation did not occur or that there was no live controversy.
In any event, even if the claim were not “live” as of the January Judgment, the January Judgment made no delineation between costs for live and rejected claims. The January Judgment, offered pursuant to Federal Rule of Civil Procedure 68, allowed judgment to be taken against the defendant “in full resolution of all claims of” the plaintiff “for all costs, including attorney’s fees, incurred in this action. This offered amount includes all costs accrued, including all attorney’s fees and all fees on fees.” Whether pertaining to a live claim or not, all costs and fees “incurred” by the plaintiff prior to January 27, 2014, including “all attorney’s fees and all fees on fees,” were expressly considered part of the January Judgment. Using the District of Columbia’s objective method of reading contracts, where the Court looks to the written language of the contract regardless of the actual intent of the parties, Abdelrhman, 76 A.3d at 888, this Court finds that the plaintiff settled “all claims . . . for all costs, including attorney’s fees, incurred in this action,” January Judgment at 1, and the plaintiff cannot, therefore, recover attorneys’ fees beyond the amount contemplated in the January Judgment for the period prior to January 27, 2014.
The policy underlying Rule 68 also militates against the plaintiff’s position. The plaintiff’s logic is that since the plaintiff had lost its claim regarding NSPD 54 on jurisdictional
10

grounds, the plaintiff was not entitled to fees pertaining to its pursuit of the document and the defendant’s Offer could not have encompassed that claim. See Pl.’s Reply at 7–8. By seeking nearly $22,000 in additional fees for the period covered by the January Judgment, the defendant correctly points out that the plaintiff is seeking now to “undo the Judgment already entered.” Def.’s Opp’n at 8. Thus, in addition to being contrary to the plain terms of the agreement, the plaintiff’s argument is contrary to the purpose of Rule 68 to “encourag[e] settlement . . . [by] enhanc[ing] both defendants’ incentive to extend Rule 68 offers and plaintiffs’ incentive to accept them.” Tunison v. Cont’l Airlines Corp., 162 F.3d 1187, 1193 (D.C. Cir. 1998). Consequently, the plaintiff’s Motion for Fees prior to the date of the defendant’s Offer of Judgment, January 27, 2014, is denied.4
C. The Plaintiff Is Entitled To Attorneys’ Fees For The Period After January 27, 2014
This determination does not end the inquiry, however, since the bulk of the fees and costs the plaintiff seeks were incurred between February 2014 and December 2014. See Pl.’s Mot. Ex. 1 at 1–2; Pl.’s Reply at 22. The Court first determines if the plaintiff is entitled to attorneys’ fees under the Tax Analysts factors before turning to a determination of the amount of those fees.
1. The Agency’s Rationale For Withholding NSPD 54 Was Not “Correct As A Matter Of Law”
As stated previously, see supra Part III.A, the defendant contends that the plaintiff is not entitled to attorneys’ fees because the defendant’s “withholding of NSPD 54 was correct as a matter of law” because “this Court has already held that, granting NSA summary judgment ‘as it pertains to NSPD 54.’” Def.’s Opp’n at 11. If the defendant were correct, this finding would
4 The defendant argues that the plaintiff’s mere attempt to seek these costs warrants dismissal of its entire fee petition as a sanction. See Def.’s Opp’n at 9–10. While the plaintiff’s argument is erroneous, it is not frivolous, nor does it appear to be an attempt to “egregiously overbill the Government,” id. at 10, for costs incurred in what was, ultimately, a successful quest for the release of NSPD-54. Thus, the Court declines to impose the sanction of dismissing the plaintiff’s fee petition.
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end any further consideration of the plaintiff’s fee petition, since “[i]f the Government’s position is correct as a matter of law, that will be dispositive.” Davy, 550 F.3d at 1162. The defendant, however, is not correct, for at least three reasons.
First, in vacating EPIC I prior to a decision from the D.C. Circuit, the defendant and plaintiff agreed to erase any determination as to the propriety of the defendant’s withholding. In effect, the parties returned to the status quo ante, when no Court had considered whether the defendant’s grounds for withholding NSPD 54 were justified. At least at this stage in the proceedings, then, no Court has determined that the defendant’s position was “correct as a matter of law.”
Second, the plaintiff correctly points out that the defendant did not assert the rationale on which EPIC I found that NSPD 54 need not be released: that it was not an agency record subject to the FOIA. See Pl.’s Reply at 7. Indeed, when the parties were ordered to submit a supplemental briefing schedule to account for this jurisdictional problem, as clarified by the D.C. Circuit’s opinion in Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir 2013), the defendant “conferred” with the plaintiff and “agree[d] that no supplemental briefing [was] necessary.” Joint Status Report at 1, ECF No. 26. In other words, the basis for the withholding in EPIC I as to NSPD 54 was never asserted as the “Government’s position” at all and, consequently, the “Government’s position” was never found to be correct as a matter of law. See Davy, 550 F.3d at 1162.
Third, the position the defendant did assert was not correct as a matter of law. The defendant asserted that NSPD 54 was protected by Exemption 5 to the FOIA, which privilege exempts records from release that are “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
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agency.” 5 U.S.C. § 552(b)(5). The defendant expressly invoked “the presidential communication privilege” for exempting NSPD 54 under Exemption 5, on which EPIC I did not opine. See Def.’s Mem. Supp. Def.’s Mot. Summ. J. (“Def.’s Summ. J. Mem.”) at 1–2, ECF No. 12-1.5
The defendant appears to be asking for a de novo merits determination of the type expressly contemplated in Brayton. The D.C. Circuit held in Brayton that “[i]t is undeniable that considering the merits of an agency’s nondisclosure decision will frequently complicate the adjudication of motions for attorney fees.” 641 F.3d at 528. In evaluating the inconvenience and waste of judicial resources that would accompany these “mini-trial[s] on the merits of the underlying FOIA claim,” id., the D.C. Circuit held that the “concern that courts should not dole out fee awards to plaintiffs who bring FOIA lawsuits that cannot survive a motion for summary judgment” outweighs any such considerations. Id. The concerns weighed in Brayton are especially acute here, since the Court has already ruled on the defendant’s summary judgment motion, only to see its ruling vacated at the request of the parties, with the same parties now raising the same contentions in the context of a fee petition.
Fortunately, in the intervening period between EPIC I and today, another Judge in this District did address the position raised by the defendant in this matter—that presidential directives are exempt from disclosure under the FOIA’s Exemption 5—on the merits. In Center for Effective Government v. U.S. Department of State, 7 F. Supp. 3d 16 (D.D.C. 2013), Judge Huvelle set forth detailed reasons why the defendant’s position that presidential directives were
5 The defendant also invoked Exemption 1 and Exemption 3 to the FOIA, which exemptions allow the withholding of classified information and information exempted by other statutes, respectively, 5 U.S.C. §§ 552(b)(1), (3), to withhold portions of NSPD 54. Def.’s Summ. J. Mem. at 2. Since the defendant released an “unclassified version of NSPD 54,” Def.’s Opp’n at 4, and neither party raises the issue, the Court assumes without deciding that all portions of NSPD 54 withheld solely under Exemption 5 were released voluntarily to the plaintiff.
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protected by the presidential communications privilege was not correct as a matter of law and such directives were not subject to FOIA’s Exemption 5. To the extent that the parties look to have their dispute addressed anew in the context of this fee petition, despite the fact that the plaintiff has already received the document it requested, the Court sees no reason to disagree with the reasoning set out in Center for Effective Government. Thus, far from asserting a position that was “correct as a matter of law,” the defendant, in light of Center for Effective Government, asserted a position that was incorrect as a matter of law. Since the fourth factor in the Tax Analysts test is only dispositive if the government’s position is “correct as a matter of law,” Davy, 550 F.3d at 1162, and Center for Effective Government found that the defendant’s position was incorrect as a matter of law, no one factor of the Tax Analysts test is dispositive and the Court must examine all four of them to determine whether the plaintiff is entitled to a fee award.
2. The Tax Analysts Factors Weigh In Favor Of The Plaintiff The four non-exclusive factors to be examined in awarding FOIA attorneys’ fees are (1) the public benefit of the information sought; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest; and (4) the defendant’s reasonable basis for withholding information. See Tax Analysts, 965 F.2d at 1093. As for the first factor, the defendant asserts that the release of the information sought by the plaintiff provides only minimal public benefits because the plaintiff “identifies only one public news account that makes any reference to the release of NSPD 54 whatsoever.” Def.’s Opp’n at 12. This media coverage-based argument was advanced and rejected in EPIC v. FBI, No. 13-442, 2014 WL 5713859, at *5 (D.D.C. Nov. 5, 2014). In that case, the court found that the release of records related to an FBI facial recognition database was “fairly within the public interest,” “expand[ed] public knowledge” about the FBI’s system, and “inform[ed] debate regarding how the system and its data [were]
14

used.” Id. at *4. The defendant argued that the presence of few media articles in the record discussing “the specific records obtained in” the case militated against finding that the public was benefitted by the release of records. Id. at *5. The court rejected that contention, stating that the “argument focuses the public benefit factor too narrowly,” noting that “[t]he relevant inquiry is whether [the plaintiff’s] success is likely to add to the fund of public information that citizens may use in making vital political choices.” Id. (emphasis in original; internal quotation marks omitted).
In the instant matter, NPSD 54, and its information regarding national cybersecurity procedures, is “likely to add to the fund of public information” by providing additional information to citizens regarding their government’s activities, which is the fundamental purpose of FOIA. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011). The defendant’s focus on the number of news articles mentioning the released records fails to take into account the likelihood that this information will continue to inform public discourse for years to come. See Morley, 719 F.3d at 690 (“[T]he standard for entitlement to attorney’s fees does not ‘disqualify plaintiffs who obtain information that, while arguably not of immediate public interest, nevertheless enables further research ultimately of great value and interest’” (quoting Davy, 550 F.3d at 1162 n.3)). Thus, the first Tax Analysts factor favors the plaintiff.
The second and third factors, the plaintiff’s commercial benefit and interest in the information, can be evaluated together. Davy, 550 F.3d at 1160 (“The second and third factors . . . are often considered together”). The defendant makes a cursory attempt to show that these factors do not favor the plaintiff by noting that the plaintiff, a non-profit advocacy organization, is seeking donations through its website and newsletters, which also publicize the plaintiff’s success in obtaining NSPD 54’s release. See Def.’s Opp’n at 13–14. The defendant cites to no
15

authority for the proposition that a non-profit organization’s success at obtaining the release of documents should be held against it when that same organization mentions such success indirectly in its fundraising appeals. See id. Moreover, as the defendant concedes, other Judges in this District have determined that these two factors distinctly favor this plaintiff, since it is a “non-profit public interest research center . . . [that] derived no commercial benefit from its FOIA request or lawsuit,” and its stated aims are the public dissemination of information. EPIC v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 235 (D.D.C. 2011) (alteration in original). Thus, the second and third factors favor the plaintiff.
As to the fourth factor, as explained above, the defendant’s withholding of NSPD 54 was not “correct as a matter of law” and was rejected in Center for Effective Government. See supra Part III.C.1. Thus, this fourth factor favors the plaintiff. Since all four Tax Analyst factors favor the plaintiff, the plaintiff is entitled to a fee award. The amount of that award is reviewed for reasonableness next.
3. Portions Of The Plaintiff’s Fee Request Are Disallowed In awarding attorneys’ fees, courts generally must follow the “lodestar” method, whereby an attorney’s reasonable hourly rate is multiplied by the number of hours expended on the litigation. See SOCM, 857 F.2d at 1517. The defendant challenges the plaintiff’s method of recordkeeping and the reasonableness of the hours expended in litigation.6 The defendant alleges that the plaintiff’s compilation of its billing records into a single document violates the requirement that the plaintiff submit “contemporaneous time records.” Def.’s Opp’n at 14–15. The plaintiff has submitted a consolidated summary of the records and a
6 The defendant also challenged the plaintiff’s documentation for its attorneys’ status as licensed to practice law. Def.’s Opp’n at 18–21. The plaintiff’s declaration of Alan Butler, submitted with the plaintiff’s reply resolves those issues and shows that the plaintiff’s attorneys were, indeed, licensed attorneys with the claimed years of experience as first submitted by the plaintiff. See Decl. of Alan Butler (Dec. 8, 2014) ¶ 7, ECF No. 46-1.
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record of the hours spent on the individual dates by each attorney who worked on the matter, along with their billing rate. See Pl.’s Mot. Exs. 2–4. These records are, contrary to the defendant’s view, exactly the type of recordkeeping required for fee awards. See Concerned Veterans, 675 F.2d at 1327. Each attorney involved stated in a sworn affidavit that they calculated the number of hours spent on the matter based on the “contemporaneously-generated time records that [they] recorded throughout the litigation” of this matter. Aff. of Alan Butler ¶ 7, ECF No. 44-6; see also Aff. of Amie Stepanovich ¶ 7, ECF No. 44-7 (same); Aff. of David Husband ¶ 7, ECF No. 44-8 (same); Aff. of Ginger McCall ¶ 7, ECF No. 44-9 (same); Aff. of Julia Horwitz ¶ 7, ECF No. 44-10 (same); Aff. of Marc Rotenberg ¶ 9, ECF No. 44-11 (same); Aff. of T. John Tran ¶ 7, ECF No. 44-12 (same). These contemporaneous billing records are reflected in the entries on the consolidated documents submitted by the plaintiff. See Pl.’s Mot. Exs. 2–4. Thus, the plaintiff has met its burden, through the submission of affidavits, declarations, and billing records, of establishing the reasonableness of the fees requested. See SOCM, 857 F.2d at 1517.
The burden therefore shifts to the defendant to come forward with “specific contrary evidence” to rebut the presumption of reasonableness that inheres in the plaintiff’s fee request. Covington, 57 F.3d at 1109–10. The only “evidence” the defendant presents is a challenge to the reasonableness of staffing levels on certain “conferences” held by the plaintiff’s attorneys. Def.’s Opp’n at 22. It is axiomatic that “trial courts need not, and indeed should not, become green-eyeshade accountants” in examining fee requests since “[t]he essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011). It is, quite simply, unnecessary and a waste of judicial resources to
17

engage in such a picayune review of the subjective reasonableness of the number of attorneys who participated in a conference call.
Nevertheless, the defendant’s allegation that the plaintiff negotiated in bad faith by submitting “exploding” settlement offers on the eve of the deadlines for the submission of status reports to the Court is troubling. See Def.’s Opp’n at 24–25. Specifically, the defendant alleges that the plaintiff submitted to the defendant settlement offers that were “placed on the table for less than twenty-four hours, and withdrawn over the objection of [defense] counsel, and before [defense counsel] had had a reasonable opportunity to consider it.” Id. at 24. These “exploding offers” do not appear to have been submitted with a deadline for consideration, alerting the defendant that it would be required to respond within a set period of time. See id. at 5. Disturbingly, both offers of judgment from the plaintiff were extended within 24 hours of a deadline for a submission to the Court regarding the status of settlement discussions. See id. Thus, it would appear that these offers were extended for the express purpose of allowing the parties to make representations to the Court that were true at the time the required submissions were made, and were then withdrawn almost immediately after the submission was filed. See id.7
The plaintiff may, as the defendant admits, place any time limits on negotiations and offers that it wishes. See id. at 24 (“EPIC is free, of course, to negotiate however it sees fit.”). Nevertheless, such sharp practice of extending and then withdrawing settlement offers subverts the purpose of Rule 68 and the local rules, which are designed to encourage settlement. See, e.g.,
7 The plaintiff contends that the defendant’s submission of such information violates Federal Rule of Evidence 408, Pl.’s Reply at 21, Pl.’s Sur-Surreply in Response Def.’s Surreply on Pl.’s Mot. at 2–3, ECF No. 50, but the defendant is not submitting such evidence “either to prove or disprove the validity or amount of a disputed claim,” FED. R. EVID. 408(a). Rather, the defendant is submitting a general description of the plaintiff’s conduct, which the plaintiff does not dispute, see Pl.’s Reply at 20–21, to bolster its contention that the plaintiff failed to negotiate in good faith, as required by this Court’s Local Civil Rule 7(m), Def.’s Opp’n at 24.
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Marek v. Chesny, 473 U.S. 1, 11 (1985); Gordon v. Gouline, 81 F.3d 235, 238 (D.C. Cir. 1996). Moreover, it would appear that the plaintiff’s actions were designed to give the appearance of progress in negotiations to the Court, thereby forestalling the setting of a briefing schedule and prolonging this litigation. See Joint Status Report at 1, ECF No. 42 (“Fee negotiations are ongoing . . . . Accordingly, the Parties propose that the Court allow two weeks for discussion of fees and costs.”); see also Def.’s Opp’n at 5 (noting unilateral withdrawal of settlement offers immediately after filing of joint status reports with the Court). Such practices may hinder fee negotiations by increasing the costs to all parties involved and discouraging negotiation in favor of submitting disputes for judicial resolution. The defendant is correct that such tactics should not be countenanced to maintain the letter and spirit of the rules. Def.’s Opp’n at 24–25. Consequently, the Court will disallow all fees sought after the abrupt withdrawal of the plaintiff’s first settlement offer on October 1, 2014. Those disallowed fees total $15,187.8
* * * To sum up, the plaintiff is eligible for and entitled to attorneys’ fees as a prevailing party under 5 U.S.C. 552(a)(4)(E)(ii)(II). All fees and costs incurred prior to January 27, 2014 are covered by the January Judgment and therefore disallowed. The Court also disallows all fees incurred on and after October 1, 2014, when the plaintiff engaged in what can be charitably described as “sharp practice” in its submission of offers to the defendant that “exploded” after the submission of status reports to the Court indicating potential progress in negotiations. These deductions total $37,174.01.
8 The sum total of bills submitted between October 1, 2014 and the date of this Memorandum Opinion is derived from the plaintiff’s Ex. 4 and the total requested in the plaintiff’s reply.
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IV. CONCLUSION For the foregoing reasons, the plaintiff’s Motion for Attorney’s Fees and Costs is granted
in part and denied in part. The defendant shall pay $31,180.00 in eligible attorneys’ fees and costs, which amount constitutes the reasonable fees and costs incurred between January 27, 2014 and October 1, 2014.
An Order consistent with this Memorandum Opinion will issue contemporaneously.

Date: April 8, 2015

Digitally signed by Judge Beryl A. Howell DN: cn=Judge Beryl A. Howell, o=United States District Court, ou=District of Columbia, email=Howell_Chambers@dcd.usc ourts.gov, c=US
______________Da_te:_201_5._04._08_17_:36_:00_-0_4'0_0' _
BERYL A. HOWELL
United States District Judge

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 Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 1 of 35
APPEAL,CLOSED,TYPEíI
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10ícví00196íBAH

ELECTRONIC PRIVACY INFORMATION CENTER v. NATIONAL SECURITY AGENCY et al Assigned to: Judge Beryl A. Howell Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 02/04/2010 Date Terminated: 11/19/2013 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ELECTRONIC PRIVACY INFORMATION CENTER

represented by Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483í1140, ext 106 Fax: (202) 483í1248 Email: rotenberg@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amie L. Stepanovich ELECTRONIC PRIVACY INFORAMTION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483í1140x 104 Email: stepanovich@epic.org ATTORNEY TO BE NOTICED

Ginger P. McCall ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483í1140 Fax: (202) 483í1248 Email: mccall@epic.org TERMINATED: 08/02/2013

John Arthur Verdi ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW

1

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 2 of 35
Suite 200 Washington, DC 20009 (202) 540í8177 Fax: (202) 483í1248 Email: johnverdi@gmail.com TERMINATED: 03/28/2012

V. Defendant NATIONAL SECURITY AGENCY
Defendant NATIONAL SECURITY COUNCIL TERMINATED: 07/07/2011

represented by Gregory Peter Dworkowitz U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305í8576 Fax: (202) 616í8470 Email: gregory.p.dworkowitz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Ilan Wilkenfeld U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 20 Massachusetts Avenue, NW Washington, DC 20009 (202) 305í7920 Fax: (202) 616í8470 Email: joshua.i.wilkenfeld@usdoj.gov TERMINATED: 05/22/2012
Judson Owen Littleton U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305í8714 Email: judson.o.littleton@usdoj.gov TERMINATED: 07/08/2013
represented by Joshua Ilan Wilkenfeld (See above for address) TERMINATED: 05/22/2012

Date Filed 02/04/2010

# Page Docket Text

1

COMPLAINT against NATIONAL SECURITY AGENCY, NATIONAL

SECURITY COUNCIL ( Filing fee $ 350, receipt number 4616027382) filed

by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1

2

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 3 of 35

02/04/2010

02/04/2010

2

03/25/2010

3

03/25/2010

4

03/25/2010 5 03/25/2010 6

04/08/2010 7

04/15/2010 8 01/20/2011 07/07/2011 9 07/07/2011 10 07/07/2011 07/20/2011 11 07/21/2011

Civil Cover Sheet)(rdj) (Entered: 02/05/2010)
SUMMONS (4) Issued as to NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 02/05/2010)
LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER identifying Corporate Parent NONE for ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 02/05/2010)
NOTICE of Appearance by Joshua Ilan Wilkenfeld on behalf of NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Wilkenfeld, Joshua) (Entered: 03/25/2010)
MOTION to Dismiss Partial Motion to Dismiss by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 03/25/2010)
ANSWER to 1 Complaint by NATIONAL SECURITY AGENCY.(Wilkenfeld, Joshua) (Entered: 03/25/2010)
STANDING ORDER Signed by Judge Ricardo M. Urbina on 3/25/2010. Read this Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(tg, ) (Entered: 03/25/2010)
Memorandum in opposition to re 4 MOTION to Dismiss Partial Motion to Dismiss filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 04/08/2010)
REPLY to opposition to motion re 4 MOTION to Dismiss Partial Motion to Dismiss filed by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL. (Wilkenfeld, Joshua) (Entered: 04/15/2010)
Case reassigned to U.S. District Judge Beryl A. Howell. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
MEMORANDUM OPINION regarding 4 defendants' partial motion to dismiss. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
ORDER granting 4 Defendants' Partial Motion to Dismiss for the reasons set forth in the accompanying Memorandum Opinion. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
Set/Reset Deadlines: Joint Report due by 7/20/2011. (zalg, ) (Entered: 07/08/2011)
STATUS REPORT JOINT REPORT by ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY AGENCY. (Wilkenfeld, Joshua) (Entered: 07/20/2011)
MINUTE ORDER (paperless) adopting the following proposed SCHEDULING ORDER: The last day for supplemental production of responsive documents shall be August 30, 2011. Defendant's motion for summary judgment and supporting materials shall be filed by October 11,
3

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 4 of 35

07/21/2011
10/11/2011 12 11/11/2011 13 11/11/2011 14 12/08/2011 15 12/08/2011 16 12/22/2011 17

2011. Plaintiff's crossímotion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by November 11, 2011. Defendant's reply in further support of its motion and opposition to plaintiff's crossímotion shall be filed by December 8, 2011. Plaintiff's reply in further support of its crossímotion shall be filed by December 22, 2011. Signed by Judge Beryl A. Howell on 7/21/2011. (lcbah2) (Entered: 07/21/2011)
Set/Reset Deadlines: Supplemental production of responsive documents shall be filed by 8/30/11. Defendant's motion for summary judgment and supporting materials shall by filed by 10/11/11. Plaintiff's crossímotion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by 11/11/11. Defendant's reply in further support of its motion and opposition to plaintiff's crossímotion shall be filed by 12/8/11. Plaintiff's reply in further support of its crossímotion shall be filed by 12/22/11. (zalg, ) (Entered: 07/26/2011)
MOTION for Summary Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration Declaration of Diane M. Janosek, # 3 Tab A, # 4 Tab B, # 5 Tab C, # 6 Tab D, # 7 Tab E, # 8 Tab F, # 9 Tab G, # 10 Declaration Declaration of Mary Ronan, # 11 Statement of Facts, # 12 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 10/11/2011)
Cross MOTION for Summary Judgment Combined CrossíMotion and Motion for Oral Hearing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Genuine Issues in Opposition to Defendant's Statment of Material Facts, # 4 Text of Proposed Order)(Verdi, John). Added MOTION for Hearing on 11/14/2011 (jf, ). (Entered: 11/11/2011)
Memorandum in opposition to re 12 MOTION for Summary Judgment Combined CrossíMotion and Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts, # 2 Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 3 Text of Proposed Order)(Verdi, John) (Entered: 11/11/2011)
REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
Memorandum in opposition to re 13 Cross MOTION for Summary Judgment Combined CrossíMotion and Opposition MOTION for Hearing Combined reply in support of NSA's motion for summary judgment and opposition to Plaintiff's crossímotion for summary judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment Combined CrossíMotion and Opposition MOTION for Hearing filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John)
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03/28/2012 18 03/28/2012 19 05/22/2012 20 10/10/2012 21 12/22/2012 22 07/08/2013 23 08/02/2013 24 09/09/2013

(Entered: 12/22/2011)
NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)
NOTICE OF SUBSTITUTION OF COUNSEL by Judson Owen Littleton on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Joshua Wilkenfeld (Littleton, Judson) (Entered: 05/22/2012)
NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 10/10/2012)
STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 12/22/2012)
NOTICE OF SUBSTITUTION OF COUNSEL by Gregory Peter Dworkowitz on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Judson O. Littleton (Dworkowitz, Gregory) (Entered: 07/08/2013)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/02/2013)
MINUTE ORDER (paperless) Pending before the Court are the 12 Defendant's Motion for Summary Judgment and the 13 Plaintiff's CrossíMotion for Summary Judgment, in which the parties dispute whether the "National Security Presidential Directive 54 ("NSPD 54") and related agency records," are exempt from disclosure under the Freedom of Information Act ("FOIA"). The parties assume in their briefing that the requested documents are "agency records" subject to FOIA disclosure, unless one of nine specific exemptions applies. See 5 U.S.C. § 552(b)(1)í(9); Pl's Mem. in Supp. of CrossíMot. for Summ. J ("Pl's Mem.") at 2, ECF No. 13í1; Def's Mem. in Supp. of Mot. for Summ. J. ("Def's Mem.") at 3, ECF No. 12í1. In Judicial Watch v. United States Secret Service, Civil No. 11í5282, 2013 U.S. App. LEXIS 18119 (D.C. Cir. August 30, 2013), the United States Court of Appeals for the District of Columbia Circuit determined that certain White House Access Control System ("WHACS") records, which were "arguably created by White House staff... in the course of carrying out the constitutional, statutory, official, and ceremonial duties of the President," id. at 54í55 (internal quotations and citations omitted), were not "agency records" subject to the FOIA. In reaching this conclusion, the D.C. Circuit applied the modified control test set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (2004), which had previously been applied only to Congressional records, 2013 U.S. App. LEXIS 18119 at 40í41 n. 21. A critical focus of the modified control test is whether "the nonícovered entity here, the White House has manifested a clear intent to control the documents." Id. at 37. If the parties would like the opportunity to address the relevance, if any, of the D.C. Circuit's recent decision in Judicial Watch to the issues raised by the withholding of the requested documents in the instant case, the parties are
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Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 6 of 35

directed to submit jointly, by September 16, 2013, a schedule for supplemental briefing. Signed by Judge Beryl A. Howell on 09/09/2013. (lcbah2) (Entered: 09/09/2013)

09/09/2013

Set/Reset Deadlines: Joint schedule for supplemental briefing due by 9/16/2013. (tg, ) (Entered: 09/09/2013)

09/16/2013 25

NOTICE of Appearance by Amie L. Stepanovich on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Stepanovich, Amie) (Entered: 09/16/2013)

09/16/2013 26

STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 09/16/2013)

10/21/2013 27 11 MEMORANDUM AND OPINION regarding the defendant's 12 Motion for Summary Judgment and the plaintiff's 13 CrossíMotion for Summary
Judgment. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1)
(Entered: 10/21/2013)

10/21/2013 28

9 ORDER GRANTING in part and DENYING in part the defendant's 12 Motion for Summary Judgment; GRANTING in part and DENYING in part the plaintiff's 13 Motion for Summary Judgment and DENYING the plaintiff's 13 Motion for Hearing as moot. The parties shall, by November 4, 2013, jointly file a proposed schedule to facilitate the timely production of records responsive to the second portion of the plaintiff's FOIA request and resolution of any disputes which may arise regarding their production. See Order for further details. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1, ) (Entered: 10/21/2013)

10/22/2013

Set/Reset Deadlines: Response to Order of the Court due by 11/4/2013. (tg, ) (Entered: 10/22/2013)

11/04/2013 29

STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/04/2013)

11/04/2013

MINUTE ORDER (paperless) entering the following SCHEDULING ORDER to control further proceedings in this matter. The defendant shall, by November 8, 2013, provide any remaining responsive records to the plaintiff or, in the alternative, submit a Vaughn index detailing the records or portions of records being withheld. The parties shall, by November 15, 2013, jointly file a proposed briefing schedule to resolve any outstanding disputes in this matter or advise the Court that this case should be closed. Signed by Judge Beryl A. Howell on November 4, 2013. (lcbah1) (Entered: 11/04/2013)

11/05/2013

Set/Reset Deadlines: Defendant's Responsive records or in the alternative a Vaughn Index due by 11/8/2013. Joint Briefing Schedule due by 11/15/2013. (tg, ) (Entered: 11/05/2013)

11/15/2013 30

STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/15/2013)

11/15/2013

MINUTE ORDER (paperless) CLOSING this matter. In light of the parties' 30 Joint Status Report, in which the parties state that there "are no further substantive issues to be resolved by this Court," the Clerk is directed to close this case. The Court retains jurisdiction of this matter for the purposes of determining appropriate allocation of fees and costs, if judicial intervention is
6

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 7 of 35

11/19/2013 12/16/2013 31 12/17/2013
12/17/2013 12/17/2013 32

warranted. The parties are ORDERED to jointly file, by December 16, 2013, a status report indicating whether briefing on fees and costs will be necessary and, if so, a proposed schedule for such briefing. Signed by Judge Beryl A. Howell on November 15, 2013. (lcbah1) (Entered: 11/15/2013)
Set/Reset Deadlines: Joint Status Report due by 12/16/2013. (tg, ) (Entered: 11/19/2013)
STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 12/16/2013)
MINUTE ORDER (paperless) DIRECTING the parties, pursuant to their 31 Joint Status Report, jointly to file, by December 20, 2013, a status report advising the Court whether additional proceedings are necessary in this matter. Signed by Judge Beryl A. Howell on December 17, 2013. (lcbah1) (Entered: 12/17/2013)
Set/Reset Deadlines: Joint Status Report due by 12/20/2013. (tg, ) (Entered: 12/17/2013)
8 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 28 Order on Motion for Summary Judgment,, Order on Motion for Hearing,,,,,, 27 Memorandum &Opinion by ELECTRONIC PRIVACY INFORMATION CENTER. Filing fee $ 505, receipt number 0090í3568134. Fee Status: Fee Paid. Parties have been notified. (Rotenberg, Marc) (Entered: 12/17/2013)

7

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 8 of 35 8

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 9 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. NATIONAL SECURITY AGENCY,

Civil Action No. 10-196 (BAH) Judge Beryl A. Howell

Defendant.

ORDER Upon consideration of the defendant’s Motion for Summary Judgment, ECF No. 12, and the Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 13, the related legal memoranda in support and in opposition, the declarations submitted, and the entire record herein, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that the defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part; and it is further ORDERED that the plaintiff’s Cross-Motion for Summary Judgment is GRANTED in part and DENIED in part; and it is further ORDERED that the defendant review its search to determine if any records found in that search are responsive to the plaintiff’s FOIA request, conforming its interpretation of that request to the instructions of this Court. After such review, the defendant shall supplement its production to the plaintiff with any responsive records or, in the alternative, submit a Vaughn index detailing what records or portions of records are being withheld and under what exemptions to the FOIA; and it is further

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Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 10 of 35

ORDERED that, by November 4, 2013, the parties jointly file a proposed schedule to

facilitate the timely production of records responsive to the second portion of the plaintiff’s

FOIA request and resolution of any disputes which may arise regarding their production; and it is

further

ORDERED that the plaintiff’s Motion for an Oral Hearing is denied as moot.

SO ORDERED Date: October 21, 2013

Digitally signed by Beryl A. Howell DN: cn=Beryl A. Howell, o=District Court for the District of Columbia, ou=District Court Judge, email=howell_chambers@dcd.usco urts.gov, c=US
______________Da_te:_20_13._10_.21_17_:13_:24_-04_'00_' _
BERYL A. HOWELL
United States District Judge

2 10

Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 11 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,
Plaintiff, v. NATIONAL SECURITY AGENCY, Defendant.

Civil Action No. 10-196 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Electronic Privacy Information Center (“the plaintiff” or “EPIC”), brings this action under the Freedom of Information Act, 5 U.S.C. § 552, claiming that the defendant, the National Security Agency (“the defendant” or “NSA”), wrongfully withheld responsive records to a FOIA request seeking the unredacted text of National Security Presidential Directive (“NSPD”) 54 and related documents.1 Compl. ¶¶ 15, 55, ECF No. 1. Pending before the Court are the defendant’s Motion for Summary Judgment, ECF No. 12, and the plaintiff’s CrossMotion for Summary Judgment, ECF No. 13. For the reasons set forth below, both motions are granted in part and denied in part. I. BACKGROUND A. Factual History
1. National Security Presidential Directive 54 The main document at issue here, NSPD 54, also known as Homeland Security Presidential Directive 23 (“HSPD 23”), was issued by then-President George W. Bush on

1 Although not fully described in the Complaint, these related documents, as made clear in the parties’ briefing, are IAD Management Directive 20 and NSA/CSS 1-58.
1
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January 8, 2009. Declaration of Diane M. Janosek, Deputy Associate Director for Policy and
Records, NSA, (“Janosek Decl.”) ¶ 8, ECF No. 12-2. “NSPD 54 is a confidential
communication from the President of the United States to a select and limited group of senior
foreign policy advisors, cabinet officials, and agency heads on the subject of cybersecurity
policy.” Decl. of Mary Ronan, Director of Access Management Office, National Security Staff
(“Ronan Decl.”) ¶ 7, ECF No. 12-10; see also Def.’s Mem. Supp. Mot. for Summ. J. (“Def.’s
Mem.”) at 3, ECF No. 12-1. “NSPD 54 also implemented the [Comprehensive National
Cybersecurity Initiative (“CNCI”)].” Janosek Decl. ¶ 8. It was distributed with a “transmittal
memo” from the Homeland Security Council’s Executive Secretary that “emphasized NSPD-
54’s close-hold nature and the need to safeguard its content.” Ronan Decl. ¶ 7. This transmittal
memo “prohibited dissemination of the document beyond its authorized recipients without White
House approval and further instructed that even within receiving agencies, copies should be
distributed only on a need to know basis.” Id. The document is classified “Top Secret” but includes portions that are unclassified.2 Id. ¶ 8.
2. The Plaintiff’s FOIA Request
In June 2009, the plaintiff submitted a FOIA request to the NSA seeking “National
Security Presidential Directive 54 . . . and related records” from the defendant. Janosek Decl.
Tab A at 3, ECF No. 12-3. Specifically, the FOIA request sought: (1) “The text of the National
Security Presidential Directive 54 otherwise referred to as The Homeland Security Presidential
2 There is some dispute as to how much of, and at what level, NSPD 54 is classified. The defendant asserts it is withholding all of NSPD under Exemption 5 as a “presidential communication,” but it also asserts that one paragraph is being withheld under Exemption 1 “because the information is currently and properly classified in accordance with [Executive Order] 13526 and Exemption 3 because the information is protected by statutes.” Janosek Decl. ¶ 34. The NSC’s declarant, however, states “NSPD-54 as a whole is classified as TOP SECRET. Individual paragraphs within NSPD-54 have different classification markings ranging from UNCLASSIFIED to, SECRET, and TOP SECRET.” Ronan Decl. ¶ 8. It is unnecessary to determine at what level, if any, NSPD 54 is classified because, as explained in part III.A infra, NSPD 54 is not an “agency record” for the purposes of the FOIA under the D.C. Circuit’s recent opinion in Judicial Watch v. United States Secret Service, 726 F.3d 208 (D.C. Cir. 2013).
2
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Directive 23[;]” (2) “The full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation[;]” and (3) “Any privacy policies related to either the Directive, [or] the Initiative, including but not limited to, contracts or other documents describing privacy policies for information shared with private contractors to facilitate the Comprehensive National Cybersecurity Initiative.” Id. at 5.3 On August 14, 2009, the defendant released two redacted documents, USSID SP0018 and NSA/CSS Policy 1-23, responsive to the third part of the plaintiff’s request that had been previously released pursuant to the FOIA.4 Janosek Decl. ¶ 13. With that release, the defendant notified the plaintiff that other responsive records had also been located and were under review “to determine what information could be released and the [the defendant] would finish [its] review as expeditiously as possible.” Id.
By letter dated October 26, 2009, the defendant informed the plaintiff that it had no records responsive to the second part of the plaintiff’s request. Janosek Decl. Tab F at 1, ECF No. 12-8. Of the three documents responsive to the first and third parts of the plaintiff’s request, two were being withheld in their entirety under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure “inter-agency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the agency.” Janosek Decl. Tab F at 1. Portions of the same documents were also being withheld under FOIA Exemption 1, 5 U.S.C. § 552(b)(1), which exempts from disclosure items properly classified. Id. at 1–2. The third document was not released as it “did not originate with this Agency” and had “been referred to the National Security Council for review and direct response to [the plaintiff].” Id. at 2.
3 The request also sought expedited processing and a request for a fee waiver. Janosek Decl. Tab A at 5–6. The fee waiver was granted but expedited processing was initially denied. Janosek Decl. ¶ 11. After an administrative appeal, the request for expedited processing was granted. Id. ¶ 12. 4 The defendant does not specify to whom the documents had been previously released. See Janosek Decl. ¶ 13; Janosek Decl. Tab E at 2, ECF No. 12-7.
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Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 14 of 35
The plaintiff timely filed an administrative appeal of these determinations. Janosek Decl. ¶ 17. While the appeal was pending, the plaintiff timely filed the instant action. Id. The defendant subsequently released redacted copies of IAD Management Directive 20 and NSA/CSS 1-58, which were the two documents it referred to in the October 26, 2009 letter as being withheld in their entirety under Exemption 5. Id. ¶ 15 n.2. Portions of those documents continued to be withheld under Exemptions 1 and 3. Id. Thus, at issue in this case are the portions of IAD Management Directive 20 and NSA/CSS 1-58 withheld under Exemptions 1 and 3, and NSPD 54. Id. NSPD 54 is the document that did not originate with the defendant agency, and is being withheld in its entirety under the presidential communications privilege portion of Exemption 5, 5 U.S.C. § 552(b)(5), with one paragraph also being withheld under Exemptions 1 and 3. See Janosek Decl. ¶ 34.
B. Procedural History The plaintiff filed the instant action against the Defendant and the National Security Council (“NSC”) asserting four claims for relief regarding the defendant’s alleged failure to comply with the FOIA’s statutory deadlines and to disclose responsive agency records (Counts One and Two); the National Security Council’s alleged failure to disclose responsive agency records (Count 3); and the defendant’s alleged violation of the Administrative Procedure Act, 5 U.S.C. § 706 (Count 4). See Compl. ¶¶ 52–73. The Complaint seeks production of all responsive records, a Vaughn index describing all records withheld and the exemptions under which they are being withheld, and attorneys’ fees. Id. at 10–11. The defendant and the NSC filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as to Counts Three and Four and to dismiss all claims against the NSC. See Def.’s Partial Mot. to Dismiss at 1, ECF No. 4. This motion was granted because the NSC is not an “agency” within the meaning of the FOIA, see Mem. Op. at
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Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 15 of 35
8–9, ECF No. 9, and adequate relief is available to the plaintiff under the FOIA without resort to the APA. See id. at 14.
Now pending before the Court are the parties’ cross motions for summary judgment on the remaining counts, Counts One and Two. After the motions were fully briefed, the D.C. Circuit released its opinion in Judicial Watch, Inc. v. United States Secret Service, 726 F.3d 208 (D.C. Cir. 2013) (“Judicial Watch”), which, for the first time, applied the “control” test for whether a record is an “agency record” set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) (“United We Stand”), to the Office of the President. See Judicial Watch, 726 F.3d at 231. The Court invited the parties to supplement their briefing as to whether NSPD 54 was an “agency record” under the United We Stand test. See Minute Order dated September 9, 2013. The parties declined to do so. See Joint Status Report at 1, ECF No. 26. The motions are now ripe for decision. II. LEGAL STANDARD
Congress enacted the FOIA as a means “to open agency action to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The Supreme Court has “consistently recognized [] the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] the public’s interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy, 131
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S. Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Ofc. of Mgmt. and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.
The agency invoking an exemption to the FOIA has the burden “to establish that the requested information is exempt.” Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 351-352 (1979); see also Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (holding that the agency “bears the burden of establishing the applicability of the claimed exemption.”). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. Oglesby v. U. S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection…[which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency’s decision.”).
A district court must review the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption.” Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The FOIA provides federal courts with the power to “enjoin the agency from withholding records and to order the production of any agency records improperly withheld from
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the complainant.” 5 U.S.C. 552(a)(4)(B).
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact.” FED. R. CIV. P. 56. “In FOIA cases, ‘[s]ummary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of agency bad faith.’” Judicial Watch, 726 F.3d at 215 (D.C. Cir. 2013) (quoting
Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant
v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). “Ultimately, an agency’s justification for invoking
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S.
Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Defense,
628 F.3d 612, 619 (D.C. Cir. 2011)); Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.
2009) (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir 2007)).
III. DISCUSSION
The parties have focused their attention on whether the withholding of records responsive
to the plaintiff’s request under exemptions to the FOIA was proper, but such exemptions are
irrelevant if the records requested are not “agency records” within the meaning of the FOIA. See
Judicial Watch, 726 F.3d at 214–15. If the records in question are not “agency records,” courts do not have the power under the FOIA to order their disclosure.5 See id.; see also 5 U.S.C.
5 Whether a document is an “agency record” is a jurisdictional question that must be answered before proceeding to decide a case under the FOIA on the merits. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B), federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’ Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552.”); Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 926 (D.C. Cir. 2011) (“[U]nder FOIA, a federal court may only order an agency to release “agency records.”); Glick v. Dep’t of Army, 971 F.2d 766, *1 (D.C. Cir. 1992) (per curiam) (affirming dismissal of FOIA suit because “[a]ppellant does not allege that any agency records have been improperly withheld, which is a jurisdictional prerequisite to suit under the FOIA.”). The courts have “an independent obligation to determine whether subject-matter jurisdiction exists.” Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 532 F.3d 860, 862 (D.C. Cir. 2008) (citing Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 706
7
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§ 552(a)(4)(B). Thus, the Court will first determine if the primary document at issue, NSPD 54, is an “agency record” before turning to a discussion of the propriety of any exemptions. Next, it will review the application of Exemptions 1 and 3 to IAD Management Directive 20 and NSA/CSS 1-58. Finally, the Court will turn to the plaintiff’s challenge to the defendant’s interpretation of the second portion of the plaintiff’s request.
A. NSPD 54 Is Not An Agency Record The defendant withheld NSPD 54 under Exemption 5 and, consequently, the majority of the parties’ briefing centers on whether this exemption’s incorporation of the “presidential communications privilege” applies to NSPD 54.6 See, Pl.’s Mem. Opp’n to Def.’s Mot. Summ. J. and in Supp. Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mem.”) at 10–21, ECF No. 14; Def.’s Mem. at 7–12. In doing so, the parties gloss over the question of whether NSPD 54 is an “agency record” at all, which is a threshold question the Court must resolve before turning to the applicability of any exemptions. See 5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”). Under this Circuit’s recent opinion in Judicial Watch, the answer to this critical question as to NSPD 54 is no, rendering all other arguments about the applicability of Exemption 5 moot. The test for whether a record is an “agency record” for the purposes of the FOIA is whether an agency (1) “either create[s] or obtain[s]” the record and (2) is “in control of the requested materials at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts,
(D.C. Cir. 2008)). Thus, even though the parties have not raised this issue, the Court is obligated to determine, sua sponte, whether the records in dispute are “agency records.” 6 Exemption 5 incorporates standard discovery privileges which would normally exempt documents from production in the course of civil litigation. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148–49 (1975). The “presidential communications privilege” is one of those discovery privileges incorporated into Exemption 5. See Judicial Watch, 726 F.3d at 229 n.25 (quoting Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)); Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 532 F.3d 860, 865 (D.C. Cir. 2008).
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492 U.S. 136, 144–45 (1989). The defendant has admitted that it “obtained” NSPD 54. See Janosek Decl. ¶ 31 (“[NSPD 54] was issued to a number of high ranking Presidential advisers, Cabinet officials, and agency heads including (inter alia) the Director of the NSA.”); Def.’s Mem. in Opp’n to Pl.’s Cross-Mot. Summ. J. and Reply in Supp. of Def.’s Mot. Summ. J. (“Def.’s Reply”) at 17, ECF No. 16 (“NSA has possession of a copy of NSPD 54”). Thus, the first prong of the Tax Analysts test is met. Yet, “each [prong] must be satisfied for requested materials to qualify as agency records.” Tax Analysts, 492 U.S. at 144. The second, “control” prong is ultimately fatal to the plaintiff’s request.
Judicial Watch established that records originating with the President are subject to the modified “control” test set forth in United We Stand, which had previously only been applied to records originating with Congress. See 726 F.3d at 224. Under this “control” test, a record is under the control of an agency, thus making it an “agency record,” if the agency has the “ability to use or dispose of the record as it sees fit.” United We Stand, 359 F.3d at 600. At issue in Judicial Watch were the “official visitors logs and/or other records concerning visits to the White House” for a specified period of time. Judicial Watch, 726 F.3d at 214. The D.C. Circuit found that the logs were in the possession of the United States Secret Service, meaning it “obtained” them, but the Secret Service could “use the records for only two limited purposes” and had to transfer the records to the White House and purge them from its computer systems after sixty days. Id. at 218–19. The court found that because the White House, an entity not subject to the FOIA, “has manifested its intent to control the entirety of the [visitors logs],” the United We Stand test’s application militated against a finding that the logs were “agency records” under the FOIA. See id. at 223–24.
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As applied to the instant case, the parties do not dispute that NSPD 54 originated with the President or the NSC. See Janosek Decl. ¶ 30 (“This document did not originate with NSA, but rather, it originated with the National Security Council (NSC) and Homeland Security Council (HSC).”); Pl.’s Mem. at 3 (“President George W. Bush issued NSPD 54, but did not release the text of the directive to the public.”). The law in this Circuit is clear that the NSC is not an “agency” for the purposes of the FOIA. See Armstrong v. Exec. Office of the President, 90 F.3d 553, 559 (D.C. Cir. 1996) cert. denied 520 U.S. 1239 (1997); see also Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 91 (D.D.C. 2011). This is so because the NSC is similar to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President,” which the Supreme Court has held are not an “agency” for the purposes of the FOIA. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 155 (1980). Indeed, in Kissinger, the Supreme Court found that papers and notes generated by the future Secretary of State were not “agency records” because they were created while he was functioning as “Assistant to the President.” Id. at 156.
The parties also do not dispute that the President placed significant limits on the distribution of NSPD 54. See Janosek Decl. ¶ 31; Pl.’s Mem. at 3; see also Ronan Decl. ¶ 7 (“The directive was originally accompanied by a transmittal memo from a Special Assistant to the President . . . [that] emphasized NSPD-54’s close-hold nature and the need to safeguard its content, a need that continues to this day.”). For instance, only specific, high-ranking Presidential advisors were given the directive, and they themselves could only distribute the directive to those within their agencies with a “need to know.” Janosek Decl. ¶¶ 32–33. Indeed, the defendant’s declarant notes that “[e]xplicit White House permission is further required before redistributing NSPD-54 to overseas organizations within the Agency or to other Governmental
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agencies/organizations,” id. ¶ 33, and the memorandum accompanying NSPD 54 “makes explicitly clear that a recipient of NSPD 54 should not distribute or disclose the document without express permission from the White House.” Id. ¶ 32 (emphasis in original).
In assessing the level of control exercised by a FOIA-exempt entity, such as Congress or the Office of the President, the D.C. Circuit has considered several indicia. In Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), the D.C. Circuit rejected a plaintiff’s argument that a classified transcript of a hearing before Congress in the CIA’s possession was an “agency record” merely because it was in the CIA’s possession. See Goland, 607 F.2d at 343, 345. The court elaborated that, notwithstanding an agency’s possession, courts must look to whether a FOIA-exempt entity retains control of the document. See id. at 345–47. The court found that because, when the CIA received the document, it “bore the typewritten marking ‘Secret’ on its interior cover page,” and that the CIA “retains a copy of the Transcript for internal reference purposes only, to be used in conjunction with legislation concerning the Agency and its operations,” “Congress’ intent to retain control of the document is clear.” Id. at 347–48. The court added that “[i]n ascertaining whether a record in the possession of an agency is nonetheless a congressional document, a court will of course accord due weight to the factors that influence us in this case, including (1) Congress’ clear intent to exempt congressional documents from disclosure under FOIA; (2) Congress’ clear prerogative to prevent disclosure of its own confidential materials; and (3) the danger of inhibiting the legislative and judicial branches from making their records available to the executive branch.” Id. at 348 n.48.
Similarly, in United We Stand, the D.C. Circuit found that a letter sent to the IRS by the congressional Joint Committee on Taxation was not an “agency record” because the document itself stated: “This document is a Congressional record and is entrusted to the Internal Revenue
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Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee.” United We Stand, 359 F.3d at 600–01. The court went on to find that the agency’s response to the letter must be released under the FOIA as an agency record, with portions redacted so as not to disclose the nature of Congress’ request. Id. at 602–03.
By contrast, where the FOIA-exempt entity has conveyed documents to an agency without clear limits on their use or further dissemination, the D.C. Circuit has found the records to be under agency control. In Holy Spirit Association for the Unification of World Christianity v. CIA, 636 F.2d 838 (D.C. Cir. 1980) (“Holy Spirit”), thirty-five documents containing “correspondence and memoranda originated by one of four congressional committees that investigated various aspects of Korean-American relations between 1976 and 1978” were requested under the FOIA from the CIA, which had possession of the documents. 636 F.2d at 840, vacated in part on other grounds by 455 U.S. 997 (1982). The court contrasted the treatment of the requested records with the treatment of three “sealed cartons of additional congressional documents” transferred to the CIA “for safekeeping” at around the same time that were “accompanied by a memorandum from the House Committee on International Relations indicating that the Committee retained jurisdiction over the documents, that the documents contained classified information, and that access to the files was limited to those with authorization from the Clerk of the House.” Id. at 842. Unlike the three sealed cartons of documents, the thirty-five records at issue in Holy Spirit were not accompanied by any instructions and the agency’s declarant made “clear that only some congressional documents transferred to the CIA contain classified information or details of intelligence activities.” Id. at 841–42. The court found that the thirty-five records released to the CIA by Congress without “some clear assertion of congressional control . . . either in the circumstances of the documents’
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creation or in the conditions under which they were sent to the CIA” were “agency records” for the purposes of the FOIA. Id. at 842.
Likewise, in Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983), the D.C. Circuit found that documents transferred from the Senate Select Committee on Intelligence to the FBI and CIA pertaining to the shooting death of a former employee were “agency records” because the Committee “affixed no external indicia of control of confidentiality on the faces of the documents,” nor were the “transcripts of testimony [contained in the documents] conducted under any special conditions of secrecy.” Paisley, 712 F.2d at 694. Additionally, the court found that even letters from the Committee to the agencies at issue indicating “the Committee’s desire to prevent [the documents’] release without its approval” were insufficient to indicate that Congress retained control because they were “too general and sweeping to provide sufficient proof, when standing alone, of a specific intent to transfer these five . . . documents to the FBI and the CIA for a ‘limited purpose and on condition of secrecy.’” Id. at 695 (quoting Goland, 607 F.2d at 348 n.48).
Thus, for the purposes of determining the indicia of control evidenced by the FOIAexempt entity, the D.C. Circuit has consistently looked to the intent of the entity manifested at the time of transfer and the clarity of that intent with respect to the documents subject to the FOIA request.
The D.C. Circuit in Judicial Watch, in applying the United We Stand control test to the Office of the President, found that “the indicia of White House control in [Judicial Watch] are even stronger than the indicia of congressional control in United We Stand.” Judicial Watch, 726 F.3d at 223. By contrast to the indicia in United We Stand, where Congress had asserted only a “limited scope of confidentiality and hence asserted control over only a limited subset of
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documents,” the White House in Judicial Watch had “manifested its intent to control the entirety of the [visitors logs at issue], all of which it expects the Secret Service to transfer to it.” Id. That control was manifested by, inter alia, the signing of a Memorandum of Understanding between the White House and the Secret Service instructing that the logs were to be used “for two limited purposes,”7 and were to be transferred to the White House and erased from the Secret Service’s computer servers every sixty days. See id. at 212. The Memorandum of Understanding also expressly provided that “[a]ny information provided to the Secret Service for the creation of [the logs] is provided under an express reservation of White House control.” Id. at 223 (internal quotation marks omitted).
In the instant case, Judicial Watch applies a fortiori. The White House has manifested its intent to control the entirety of NSPD 54 and its dissemination even within agencies to which the document was distributed, see Janosek Decl. ¶ 33, a level of control not present in Judicial Watch. Similar to the records in United We Stand and Goland, NSPD 54 was distributed to agencies with an accompanying memorandum that “forbids . . . intra-agency distribution except on a need to know basis,” and directs that “all public requests for disclosure of NSPD-54” be referred to the NSC and Homeland Security Council (“HSC”). Janosek Decl. ¶¶ 32–33. Indeed, the memorandum made clear that “a recipient of NSPD 54 should not distribute or disclose the document without the express permission of the White House.” Id. ¶ 32 (emphasis in original). NSPD 54 is decidedly unlike the agency-controlled documents in Paisley and Holy Spirit, where the FOIA-exempt entity, Congress, placed little or no restrictions on the documents once they were transferred to the agencies. Thus, under the United We Stand test, the defendant has shown a sufficiently “clear . . . expression of [White House] intent to control” NSPD 54, making it a
7 The Secret Service was only to use the logs to “perform a background check on the visitor, and to verify the visitor’s admissibility at the time of the visit.” Judicial Watch, 726 F.3d at 212.
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non-agency record for the purposes of the FOIA.8 See 5 U.S.C. 552(a)(4)(B). Consequently, as
it pertains to NSPD 54, summary judgment is granted to the defendant and denied to the plaintiff.
B. Application Of Exemption 5 To NSPDs And Their Predecessors
Although the Court finds that NSPD 54 is not an agency record under the changed legal
landscape created by Judicial Watch, the determination not to release a NSPD is consistent with
the few FOIA cases to have previously addressed this issue. It is first necessary to briefly
describe the history of these national security records before discussing the way they have been
addressed in prior court decisions.
1. National Security Instruments
NSPD 54 is an example of a type of national security document that began with the
formation of the NSC in 1947. See HAROLD C. RELYEA, CONG. RESEARCH SERV., CRS NO. 98-
611, PRESIDENTIAL DIRECTIVES: BACKGROUND AND OVERVIEW at CRS-8 (2007) (“PRESIDENTIAL
DIRECTIVES”). What started as “policy papers” prepared by the NSC’s members and staff
eventually became documents signed by the President mandating operating policy. Id. at CRS-
8 The impact of Judicial Watch remains unclear regarding the extent to which the President may make policy decisions and issue directives to Executive branch agencies outside the public eye and beyond the reach of the FOIA, which “is broadly conceived . . . to permit access to official information long shielded unnecessarily from public view . . . [with] a judicially enforceable public right to secure such information from possibly unwilling official hands.” See Rose, 425 U.S. at 361. The plaintiff argues convincingly for narrowly construing the scope of Exemption 5 and the presidential communications privilege because “the public will be directly affected by the exercise of the government’s authority” embodied in NSPD 54. Pl.’s Mem. at 21; id. at 13–14; see also Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1116 (D.C. Cir. 2004) (noting the D.C. Circuit has “caution[ed] against the dangers of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President”) (quoting In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) (internal quotation marks omitted)). As the instant case demonstrates, however, under Judicial Watch, a President need not invoke the presidential communications privilege—or any other enumerated exemption—to avoid disclosure pursuant to the FOIA of records for which he or she has clearly exerted efforts to retain control and limit dissemination “in the course of” “the carrying out of the constitutional, statutory, official [and] ceremonial duties of the President.” Judicial Watch, 726 F.3d at 228 (quoting the definition of “Presidential records” in the Presidential Records Act, 44 U.S.C. § 2201(2)). This result is difficult to reconcile with the D.C. Circuit’s rejection in Citizens for Responsibility and Ethics in Washington v. United States Department of Homeland Security, 532 F.3d 860 (D.C. Cir. 2008), of the idea that “the President should never have to assert executive privilege in the Exemption 5 context because doing so is simply too burdensome” noting that “can’t be right.” 532 F.3d at 867 (emphasis in original). Nevertheless, Judicial Watch appears to create an alternative mechanism for the President to keep records secret without resorting to a FOIA exemption.
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8–9. “In general, they were not required to be published in the Federal Register, were usually
security classified at the highest level of protection, and were available to the public after a great
many years had elapsed, usually at the official library of the President who had approved them.”
Id. at CRS-9.
These national security documents have been known by a series of titles as different
Presidents have called them by different names, including NSC Policy Papers, National Security
Action Memoranda, National Security Study Memoranda, Presidential Review Memoranda, and
Presidential Decision Directives. Id. at CRS-9–11. President George W. Bush referred to them
as National Security Presidential Directives. Id. at CRS-12. The secretive nature of these
documents is made apparent by the fact that the public only learns of them once they are released
and can only guess at how many each President has issued. See id. at CRS-11 (“While the
number of NSDs issued by President [George H.W.] Bush remains officially secret, an October
21, 1991, directive concerning single scope security background investigations was designated
NSD-63.”). All of them are generated and controlled by the President and NSC staff. Id. at CRS-9–12.9
2. National Security Instruments In The Courts
This is not to say, however, that no NSC directives have ever been released to the public.
For instance, in Los Angeles Times Communications LLC v. United States Department of the
Army, 442 F. Supp. 2d 880 (C.D. Cal. 2006), the Department of the Army included a copy of a
9 The plaintiff makes an appealing, but ultimately unavailing, argument that allowing the withholding of NSPD 54 under an expansive view of the presidential communications privilege would allow “documents that will have significant and wide-spread impact [to][] be kept totally hidden” and “bring about the very dangers” of “allow[ing] for the creation of ‘secret law,’ the very thing that the FOIA seeks to prevent.” Pl.’s Mem. at 15; see also Pl.’s Reply at 10 (“By labeling NSPD 54 a simple ‘communication,’ the NSA mischaracterizes the significance of the document and would encourage expansion of secret law.”). Indeed, the D.C. Circuit has cautioned that Congress “indicated unequivocally that the purpose of [FOIA] was to forbid secret law. And substantive declarations of policy are clearly ‘law’ within the meaning of that prohibition.” Sterling Drug, Inc. v. FTC, 450 F.2d 698, 713 (D.C. Cir. 1971) (Bazelon, C.J., concurring in part and dissenting in part) (emphasis in the original). That being said, Judicial Watch binds this Court.
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NSPD dated May 11, 2004 “regarding United States government operations in Iraq” as part of a declaration in a FOIA case seeking other information about government contractors operating in Iraq. 442 F. Supp. 2d at 891 n.18. Similarly, in Schreibman v. United States Department of Commerce, 785 F. Supp. 164 (D.D.C. 1991), the National Institutes of Standards and Technology (“NIST”) provided a copy of a “Presidential directive establishing data security policy and standards” voluntarily in response to a FOIA request. 785 F. Supp. at 165.
By contrast to these examples of voluntary disclosure of Presidential directives, in two cases where FOIA requests directly sought such instruments, the requests were rejected. In Center for National Security Studies v. Immigration and Naturalization Service, No. 87-2068, 1990 WL 236133 (D.D.C. Dec. 19, 1990), the plaintiff sought documents under the FOIA pertaining to the “Alien Border Control Committee,” which was a “multi-agency task force formed to address the identification and removal of suspected alien terrorists” under the Reagan Justice Department. 1990 WL 236133 at *1 (internal quotation marks omitted). Among the responsive documents the Department of Justice located was National Security Decision Directive10 207, which the defendant withheld in its entirety under FOIA Exemption 1 for classified documents. Id. at *2; see 5 U.S.C. § 552(b)(1). Since the plaintiff produced no evidence of bad faith on the part of the defendant in its “predictions of harm” to national security if the Directive were released and because such predictions were “entirely plausible and sufficiently descriptive to substantiate an exemption 1 claim,” the court in Center for National Security Studies granted summary judgment to the defendant and did not order release of the Directive. Id. at *3.
In Halperin v. National Security Council, 452 F. Supp. 47 (D.D.C. 1978), the plaintiff sought disclosure of a “compilation of the number and exact title of each National Security Study
10 This is the name given to NSC policy papers by President Reagan. See PRESIDENTIAL DIRECTIVES at CRS-11.
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Memoranda” and “National Security Divisional Memoranda” issued during a specific period of time under the Nixon Administration. Halperin, 452 F. Supp. at 48. These lists of national security instruments generated by the Nixon NSC and some of the individual titles on the list were classified as “Secret.” Id. at 48–49. The defendant withheld the lists in their entirety under Exemption 1 and Exemption 5 to the FOIA. Id. at 49. The court in Halperin found that the lists were properly classified and non-segregable under Exemption 1 and granted summary judgment to the defendant. Id. at 52. Since the court decided the issue based solely on Exemption 1, it expressly declined to address the applicability of Exemption 5. Id. at 49.
These cases indicate that NSPD 54 is the type of document that is generally not ordered disclosed under the FOIA. Such national security instruments appear to have only been released voluntarily by the President or NSC that created them, or their release has been approved after a substantial period of time has passed, typically through Presidential libraries. See PRESIDENTIAL DIRECTIVES at CRS-9. Although the plaintiff in the instant case has made strong arguments as to why the public has an interest in the release of NSPD 54, precedent counsels that such documents have not been found releasable under the FOIA.11 In this respect, NSPD 54 is similar in kind to the records at issue in Judicial Watch, where the circumstance deemed “most important” in bolstering the conclusion that those White House records were beyond the reach of FOIA, was that the court was “not confronted with an attempt to protect information that would otherwise be subject to FOIA.” 726 F.3d. at 232.
*** In Judicial Watch, the D.C. Circuit responded to the “fear that this case will open the floodgates to White House efforts to circumvent FOIA,” by clarifying that its holding was not
11 Since NSPD 54 is not an “agency record” for the purposes of the FOIA, the Court does not opine as to whether the presidential communications privilege encompassed in Exemption 5 is coextensive with the privilege as it is asserted in the civil discovery context, as the parties have disputed in their briefing.
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that “any record touching on White House communications were necessarily exempt from FOIA.” 726 F. 3d at 231 (emphasis in original). The court pointed to three circumstances that limited the application of its holding: first, that “no deference” was given to a Memorandum of Understanding (“MOU”) between the White House and the agency stating that the White House retained “exclusive legal custody and control” of the records at issue. Id. (emphasis in original). While not acceding to the legal conclusion articulated in the MOU, the court did, however, rely on “the way in which both parties have historically regarded and treated the documents.” Id. Similarly, in the instant case, the White House’s explicit instructions regarding the limited use and dissemination of NSPD 54 only with the White House’s approval, appears to satisfy this circumstance showing that the White House took clearly articulated steps to retain control over the document.
The second circumstance cited by the court in Judicial Watch as limiting its holding is that potential release of the records at issue under the FOIA would “put the President on the horns of a dilemma between surrendering his confidentiality and jeopardizing his safety,” which the court found to be “comparable to” the “presence of [] unacceptable choice,” faced by Congress in United We Stand and Goland. Id. at 231–32. In Goland, the D.C. Circuit noted the conflict between Congress’ “constitutional prerogative of maintaining secrecy” in its communications with agencies over which it “exercises oversight authority” and a finding that any records in possession of an agency are automatically subject to the FOIA, which the D.C. Circuit noted would cause “an impairment of [Congress’] oversight role.” Goland, 607 F.2d at 346. In United We Stand, where the documents at issue were created by an agency in response to a Congressional request, Congress evinced a clear intent to keep its request to the agency secret as part of “the Joint Committee[‘s] belie[f] that confidentiality is critical to its work.” United We
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Stand, 359 F.3d at 602. In the instant case, the defendant notes that NSPD 54 requested that “his advisers . . . submit follow-up reports,” Def.’s Mem. at 10, and confidentiality was necessary because the release of NSPD 54 “would ‘limit the President’s ability to communicate his decisions privately, thereby interfering with his ability to exercise control over the executive branch.’” Id. (quoting In re Sealed Case, 121 F.3d at 745–46). This protection of confidentiality and the President’s role in overseeing executive agencies is the same type of conflict the D.C. Circuit was concerned with in Goland, United We Stand, and Judicial Watch.
Finally, the last circumstance, deemed to be the “most important,” limitation on the Judicial Watch holding is that the requested records “involves a category of documents that effectively reproduces a set of records that Congress expressly excluded from FOIA’s coverage,” id. at 232, as detailed in the legislative history for the 1974 FOIA amendments, id. at 224–25 (discussing the Conference Report, which stated that the definition of an “agency” subject to FOIA does not include the Office of the President or the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President). The White House visitor logs at issue in Judicial Watch “would not even arguably be subject to the Act, but for the President’s need for Secret Service protection.” Id. at 232. Thus, the necessity of sharing with agents of the Secret Service the otherwise FOIA-exempt White House visitor requests did not pierce the confidentiality that the President was otherwise entitled to enjoy in those records. Similarly, here, the necessity of the President of communicating to a limited group of high-ranking Executive branch officials any instructions and guidance contained in NSPD 54 in order to effectuate the President “carrying out the constitutional, statutory, or other official or ceremonial duties of the President,” appears to fall squarely within the same category of documents found to be outside the reach of FOIA in Judicial Watch. Indeed, the question in
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Judicial Watch appears to be a closer one than the question here, as the documents in Judicial Watch were created by an agency subject to the FOIA, namely, the Secret Service, whereas in the instant case NSPD 54 was created by a FOIA-exempt entity itself, namely, the NSC, and merely distributed to agencies subject to the FOIA.
In short, none of the limitations on the holding in Judicial Watch appear to distinguish this case or make inapplicable the control test now required in determining whether NSPD 54 is an “agency record.”
C. The Defendant Properly Asserted Exemption 1 As To The Remaining Documents
The plaintiff challenges the defendant’s redaction of IAD Management Directive 20 and NSA/CSS Policy 1-58 under Exemption 1 to the FOIA, which provides that records “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order” are exempt from mandatory disclosure under the FOIA. 5 U.S.C. § 552(b)(1)(A–B). The plaintiff argues that “the agency has not established that NSPD 54 and the related records are properly classified.” Pl.’s Mem. at 22. As discussed in Part III.A, NSPD 54 is a non-agency record and not covered by the FOIA. Since the remaining two documents did not originate with a FOIA-exempt entity and are “agency records,” the defendant bears the burden of showing that they were appropriately redacted. See Assassination Archives & Research Ctr., 334 F.3d at 57 (D.C. Cir. 2003).
The plaintiff’s challenge to the withheld portions consists of a conclusory statement that “[t]he NSA presents no evidence that Ms. Ronan and Ms. Janosek have been delegated classification authority by the President or Vice President, or an agency head that was first delegated such authority by the President or Vice President” as required by Executive Order
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13526 to confer classification authority. Pl.’s Mem. at 24. This challenge fails to address the unequivocal statement by both declarants that they have been delegated classification authority under Executive Order 13526. See Ronan Decl. ¶ 1; Janosek Decl. ¶ 20. The plaintiff has offered no evidence to cast doubt upon these sworn declarations.
In reviewing withholdings under Exemption 1, “courts must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.” Wolf, 473 F.3d at 374 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)) (emphasis in original, internal quotation marks omitted). When provided with an affidavit that “describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” summary judgment is warranted for the agency. Miller, 730 F.2d at 776 (internal quotation marks and citations omitted). Here, the plaintiff does not challenge the agency’s purported justification for the classification, but rather that the individual declarants did not have adequate classification authority. See Pl.’s Mem. at 23–24. Considering the substantial deference the Court must show to agency declarations when Exemption 1 is claimed, and in the absence of any evidence other than a bald assertion that the declarants have not proven that they are valid classification authorities, despite their sworn affidavits to the contrary, the Court grants summary judgment to the defendant on its Exemption 1 withholdings in IAD Management Directive 20 and NSA/CSS Policy 1-58.12
12 To the extent the plaintiff challenges the defendant’s withholdings under Exemption 3, the plaintiff’s argument is entirely predicated upon the fact that the “records described . . . are not properly classified.” See Pl.’s Mem. at 25. Since the Court has found the plaintiff’s argument on that score to be unpersuasive, the plaintiff’s Exemption 3 argument is similarly unavailing.
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D. The Defendant Construed The Plaintiff’s FOIA Request Too Narrowly Finally, the plaintiff argues that the defendant’s “interpretation of [the plaintiff’s] plainly worded FOIA Request is contrary to the FOIA and relevant case law.” In essence, the plaintiff argues that the defendant improperly narrowed its search when responding to the second part of the plaintiff’s requests to search only for records distributed “to the NSA” rather than “to any federal agency charged with implementing the cybersecurity scheme,” as stated in the plaintiff’s request. Pl.’s Reply Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Reply”) at 12, ECF No. 17; see also Janosek Decl. Tab A at 5. The defendant’s declarant gives credence to the plaintiff’s argument, as the Janosek Declaration notes the defendant “searched for responsive records by giving plain meaning to Plaintiff’s request and thus searched for ‘Executing protocols’ that were ‘distributed to’ to [sic] the NSA – meaning, protocols that emanated from outside the NSA and were ‘distributed to’ NSA.” Janosek Decl. ¶ 36. The plaintiff’s request sought “the full text, including previously unreported sections, of the Comprehensive National Cybersecurity Initiative, as well as any executing protocols distributed to the agencies in charge of its implementation.” Janosek Decl. Tab A at 5 (emphasis added). There is no dispute that the defendant is one of the agencies “in charge of” the CNCI’s implementation, and, consequently, the agency’s search for pertinent records “distributed to the NSA” fell within the request’s parameters. Yet, the plaintiff is correct that the defendant “may be in possession of the CNCI or related records that were issued to the FBI, the CIA, or other federal agencies,” either by an entity other than the defendant or by the defendant itself. See Pl.’s Reply at 12. Such documents, under the plain meaning of the plaintiff’s FOIA request, are responsive to the request.13
13 The plaintiff also asserts that NSPD 54 is responsive to the second part of the plaintiff’s FOIA request and therefore should have been deemed a responsive record to this portion of the request. See Pl.’s Mem. at 26. The
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The plaintiff is correct that “an agency . . . has a duty to construe a FOIA request liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). By limiting its interpretation of records responsive to the plaintiff’s requests only to records emanating from outside the defendant agency, the defendant violates this basic FOIA convention. If the defendant itself generated an executing protocol for the CNCI and distributed it to other relevant federal agencies, those records were “distributed to the agencies in charge of [the CNCI’s] implementation.”
Notably, the plaintiff is not asserting that the defendant performed an inadequate search for responsive records. See Pl.’s Mem. at 27 (“[The plaintiff] has not challenged, and does not purport to challenge here, the sufficiency of the [defendant’s] search for agency records.”). Instead, the plaintiff is arguing that the defendant “searched for, located, reviewed, but unlawfully withheld as ‘unresponsive’ records that are responsive to Category 2 of [the plaintiff’s] FOIA Request.” Id. Thus, the defendant is directed to produce to the plaintiff records discovered responsive to the second part of the plaintiff’s request, including executing protocols in the defendant’s possession that were distributed to other relevant federal agencies, that were received by the NSA or distributed by the NSA, unless those records are properly withheld, in whole or in part, under exemptions to the FOIA. IV. CONCLUSION
The primary document at issue here, NSPD 54, is not an agency record for the purposes of the FOIA under the Judicial Watch standard and therefore need not be disclosed in response to a FOIA request. In addition, the plaintiff’s challenges to the defendant’s redactions of IAD
defendant admits as much, Def.’s Reply at 17, but, as discussed supra, this document is properly withheld because it is not an “agency record” for the purposes of the FOIA. Thus, the plaintiff’s argument that NSPD 54 is responsive to the second portion of its request if it were an “agency record” is technically correct, but does not yield a different result.
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Case 1:10-cv-00196-BAH Document 33 Filed 12/18/13 Page 35 of 35
Management Directive 20 and NSA/CSS 1-58 under Exemptions 1 and 3 are rejected. The plaintiff is correct, however, that the defendant improperly narrowed its search for responsive records to the second portion of the plaintiff’s FOIA requests to only those records distributed to the NSA, rather than to all agencies charged with implementing the CNCI. Consequently, the defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part and the plaintiff’s Cross-Motion for Summary Judgment is GRANTED in part and DENIED in part. The defendant shall review its search to determine if any records found in that search are responsive to the plaintiff’s FOIA request, conforming its interpretation of that request to the instructions of this Court. After such review, the defendant shall supplement its production to the plaintiff with any responsive records or, in the alternative, submit a Vaughn index detailing what records or portions of records are being withheld and under what exemptions to the FOIA. The parties are instructed to jointly file a briefing schedule to facilitate the timely production of these documents and resolution of any disputes which may arise regarding their production.
An appropriate Order will accompany this Memorandum Opinion. Date: October 21, 2013
Digitally signed by Beryl A. Howell DN: cn=Beryl A. Howell, o=District Court for the District of Columbia, ou=District Court Judge, email=howell_chambers@dcd.usco
__________________________ urts.gov, c=US Date: 2013.10.21 17:13:24 -04'00'
BERYL A. HOWELL United States District Judge
25 35

 
 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

ELECTRONIC PRIVACY

)

INFORMATION CENTER,

)

Plaintiff-Appellant,

)

)

v.

)

)

NATIONAL SECURITY

)

AGENCY,

)

Defendant-Appellee.

)

______________________________ )

Case No. 13-5369

JOINT MOTION TO DISMISS PLAINTIFF’S APPEAL AS MOOT, VACATE THE DISTRICT COURT DECISION IN PART, AND REMAND TO ADDRESS ANY CLAIM FOR FEES

On June 5, 2014, the National Security Agency released to the Electronic

Privacy Information Center (“EPIC”) an unclassified version of National Security

Policy Directive 54 (“NSPD 54”). The parties agree that the issue raised in plaintiff’s

appeal is moot now that the agency has released the record at issue. As explained

below, consistent with established practice, the parties respectfully request vacatur of

the portion of the district court decision from which plaintiff appealed. Finally, the

parties ask this Court to remand the matter to the district court, where plaintiff

intends to argue that it is entitled to an award of attorney’s fees.

1. In district court, plaintiff EPIC sought to compel disclosure of NSPD 54

and two related documents under the Freedom of Information Act. The district court

ruled that NSPD 54 was not an “agency record” subject to the FOIA. Regarding the

two related documents, the court upheld the government’s redactions under Exemptions 1 and 3. Plaintiff appealed the court’s judgment with regard to NSPD 54, asking this Court to vacate and remand for further proceedings.
2. On June 5, 2014, defendant provided to plaintiff an unclassified version of NSPD 54. The parties agree that plaintiff’s appeal, currently pending before this Court, is moot. See, e.g., Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). They therefore move to dismiss the matter.
3. In dismissing the appeal as moot, this Court should vacate the portion of the district court decision addressing plaintiff’s request for NSPD 54. Hall v. CIA, 437 F.3d 94, 99-100 (D.C. Cir. 2006) (“The normal principle is that ‘when mootness results from unilateral action of the party who prevailed below,’ the moot judgment should be vacated lest the losing party, denied an opportunity to appeal by its adversary’s conduct, should later be subject to the judgment’s preclusive effect.”) (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994)); see also UtahAmerican Energy, Inc. v. Dep’t of Labor, 685 F.3d 1118, 1121-22 (D.C. Cir. 2012) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). The parties respectfully request that the Court do so.
4. Finally, the parties ask that the case be remanded to the district court. On remand, plaintiff intends to argue that it is entitled to an award of attorney’s fees.
2

For these reasons, the parties respectfully request that the Court dismiss plaintiff’s appeal as moot, vacate the judgment of the district court with regard to NSPD 54, and remand for the district court to adjudicate plaintiff’s argument that it is eligible for and entitled to attorney’s fees. Nothing in the language of this joint motion should be understood to reflect on whether or not plaintiff is eligible for or entitled to attorney’s fees.
Respectfully submitted,

MARC ROTENBERG President, EPIC

STUART F. DELERY Assistant Attorney General

GINGER MCCALL

BETH S. BRINKMANN

Director, EPIC Open Government Project Deputy Assistant Attorney General

ALAN BUTLER DAVID HUSBAND (202) 483-1140 Electronic Privacy Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009

MARK B. STERN SAMANTHA L. CHAIFETZ /s/ (202) 514-4821 Attorneys, Appellate Staff Civil Division, Department of Justice 950 Pennsylvania Ave., NW, Rm. 7248 Washington, D.C. 20530

June 9, 2014 3

CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of June, 2014, I caused the foregoing joint motion to be electronically filed with the United States Court of Appeals for the District of Columbia and served to all registered counsel via the CM/ECF system.
Samantha L. Chaifetz /s/ Samantha L. Chaifetz

 
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APPEAL,CLOSED,TYPE-I

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10-cv-00196-BAH

ELECTRONIC PRIVACY INFORMATION CENTER v. NATIONAL SECURITY AGENCY et al Assigned to: Chief Judge Beryl A. Howell Case in other court: USCA, 13-05369 Cause: 05:552 Freedom of Information Act

Date Filed: 02/04/2010 Date Terminated: 11/19/2013 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff
ELECTRONIC PRIVACY INFORMATION CENTER

represented by Marc Rotenberg ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483-1140, ext 106 Fax: (202) 483-1248 Email: rotenberg@epic.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Jay Butler ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483-1140 ext 103 Fax: (202) 483-1248 Email: butler@epic.org ATTORNEY TO BE NOTICED

Amie L. Stepanovich ELECTRONIC PRIVACY INFORAMTION CENTER 1718 Connecticut Avenue, NW Suite 200 Washington, DC 20009 (202) 483-1140x 104 Email: stepanovich@epic.org TERMINATED: 02/03/2014

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Ginger P. McCall DEPARTMENT OF JUSTICE Ofﬁce of Privacy and Civil Liberties 1331 Pennsylvania Ave.,N.W. Suite 1000
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Washington, DC 20530 (202) 483-1140 Fax: (202) 483-1248 Email: mccall@epic.org TERMINATED: 08/02/2013
John Arthur Verdi DEPARTMENT OF JUSTICE Ofﬁce of Privacy and Civil Liberties 1331 Pennsylvania Ave.,N.W. Suite 1000 Washington, DC 20530 (202) 540-8177 Fax: (202) 483-1248 Email: johnverdi@gmail.com TERMINATED: 03/28/2012

V. Defendant NATIONAL SECURITY AGENCY
Defendant NATIONAL SECURITY COUNCIL TERMINATED: 07/07/2011
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represented by Gregory Peter Dworkowitz U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305-8576 Fax: (202) 616-8470 Email: gregory.p.dworkowitz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Ilan Wilkenfeld U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 20 Massachusetts Avenue, NW Washington, DC 20009 (202) 305-7920 Fax: (202) 616-8470 Email: joshua.i.wilkenfeld@usdoj.gov TERMINATED: 05/22/2012
Judson Owen Littleton SULLIVAN & CROMWELL LLP 1700 New York Avenue NW Suite 700 Washington, DC 20006 (202) 956-7085 Email: littletonj@sullcrom.com TERMINATED: 07/08/2013
represented by Joshua Ilan Wilkenfeld (See above for address)
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TERMINATED: 05/22/2012

Date Filed 02/04/2010
02/04/2010 02/04/2010
03/25/2010 03/25/2010 03/25/2010 03/25/2010 04/08/2010 04/15/2010 01/20/2011 07/07/2011 07/07/2011 07/07/2011 07/20/2011 07/21/2011

# Docket Text
1 COMPLAINT against NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL ( Filing fee $ 350, receipt number 4616027382) ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 02/05/2010)
SUMMONS (4) Issued as to NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 02/05/2010)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER identifying Corporate Parent NONE for ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 02/05/2010)
3 NOTICE of Appearance by Joshua Ilan Wilkenfeld on behalf of NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Wilkenfeld, Joshua) (Entered: 03/25/2010)
4 MOTION to Dismiss Partial Motion to Dismiss by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Attachments: # 1 Text of Proposed Order) (Wilkenfeld, Joshua) (Entered: 03/25/2010)
5 ANSWER to 1 Complaint by NATIONAL SECURITY AGENCY.(Wilkenfeld, Joshua) (Entered: 03/25/2010)
6 STANDING ORDER Signed by Judge Ricardo M. Urbina on 3/25/2010. Read this Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(tg, ) (Entered: 03/25/2010)
7 Memorandum in opposition to re 4 MOTION to Dismiss Partial Motion to Dismiss ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 04/08/2010)
8 REPLY to opposition to motion re 4 MOTION to Dismiss Partial Motion to Dismiss ﬁled by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL. (Wilkenfeld, Joshua) (Entered: 04/15/2010)
Case reassigned to U.S. District Judge Beryl A. Howell. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
9 MEMORANDUM OPINION regarding 4 defendants' partial motion to dismiss. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
10 ORDER granting 4 Defendants' Partial Motion to Dismiss for the reasons set forth in the accompanying Memorandum Opinion. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
Set/Reset Deadlines: Joint Report due by 7/20/2011. (zalg, ) (Entered: 07/08/2011)
11 STATUS REPORT JOINT REPORT by ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY AGENCY. (Wilkenfeld, Joshua) (Entered: 07/20/2011)
MINUTE ORDER (paperless) adopting the following proposed SCHEDULING ORDER:

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10/11/2011 11/11/2011 11/11/2011 12/08/2011 12/08/2011 12/22/2011 03/28/2012 03/28/2012

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The last day for supplemental production of responsive documents shall be August 30, 2011. Defendant's motion for summary judgment and supporting materials shall be ﬁled by October 11, 2011. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be ﬁled by November 11, 2011. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be ﬁled by December 8, 2011. Plaintiff's reply in further support of its cross-motion shall be ﬁled by December 22, 2011. Signed by Judge Beryl A. Howell on 7/21/2011. (lcbah2) (Entered: 07/21/2011)
Set/Reset Deadlines: Supplemental production of responsive documents shall be ﬁled by 8/30/11. Defendant's motion for summary judgment and supporting materials shall by ﬁled by 10/11/11. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be ﬁled by 11/11/11. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be ﬁled by 12/8/11. Plaintiff's reply in further support of its cross-motion shall be ﬁled by 12/22/11. (zalg, ) (Entered: 07/26/2011)
12 MOTION for Summary Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration Declaration of Diane M. Janosek, # 3 Tab A, # 4 Tab B, # 5 Tab C, # 6 Tab D, # 7 Tab E, # 8 Tab F, # 9 Tab G, # 10 Declaration Declaration of Mary Ronan, # 11 Statement of Facts, # 12 Text of Proposed Order) (Wilkenfeld, Joshua) (Entered: 10/11/2011)
13 Cross MOTION for Summary Judgment Combined Cross-Motion and Motion for Oral Hearing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Genuine Issues in Opposition to Defendant's Statment of Material Facts, # 4 Text of Proposed Order)(Verdi, John). Added MOTION for Hearing on 11/14/2011 (jf, ). (Entered: 11/11/2011)
14 Memorandum in opposition to re 12 MOTION for Summary Judgment Combined CrossMotion and Opposition ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts, # 2 Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 3 Text of Proposed Order)(Verdi, John) (Entered: 11/11/2011)
15 REPLY to opposition to motion re 12 MOTION for Summary Judgment ﬁled by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
16 Memorandum in opposition to re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing Combined reply in support of NSA's motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment ﬁled by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
17 REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 12/22/2011)
18 NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
19 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)

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20 NOTICE OF SUBSTITUTION OF COUNSEL by Judson Owen Littleton on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Joshua Wilkenfeld (Littleton, Judson) (Entered: 05/22/2012)

10/10/2012 21 NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 10/10/2012)

12/22/2012 22 STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 12/22/2012)

07/08/2013

23 NOTICE OF SUBSTITUTION OF COUNSEL by Gregory Peter Dworkowitz on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Judson O. Littleton (Dworkowitz, Gregory) (Entered: 07/08/2013)

08/02/2013

24 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/02/2013)

09/09/2013

MINUTE ORDER (paperless) Pending before the Court are the 12 Defendant's Motion for Summary Judgment and the 13 Plaintiff's Cross-Motion for Summary Judgment, in which the parties dispute whether the "National Security Presidential Directive 54 ("NSPD 54") and related agency records," are exempt from disclosure under the Freedom of Information Act ("FOIA"). The parties assume in their brieﬁng that the requested documents are "agency records" subject to FOIA disclosure, unless one of nine speciﬁc exemptions applies. See 5 U.S.C. § 552(b)(1)-(9); Pl's Mem. in Supp. of Cross-Mot. for Summ. J ("Pl's Mem.") at 2, ECF No. 13-1; Def's Mem. in Supp. of Mot. for Summ. J. ("Def's Mem.") at 3, ECF No. 12-1. In Judicial Watch v. United States Secret Service, Civil No. 11-5282, 2013 U.S. App. LEXIS 18119 (D.C. Cir. August 30, 2013), the United States Court of Appeals for the District of Columbia Circuit determined that certain White House Access Control System ("WHACS") records, which were "arguably created by White House staff... in the course of carrying out the constitutional, statutory, ofﬁcial, and ceremonial duties of the President," id. at 54-55 (internal quotations and citations omitted), were not "agency records" subject to the FOIA. In reaching this conclusion, the D.C. Circuit applied the modiﬁed control test set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (2004), which had previously been applied only to Congressional records, 2013 U.S. App. LEXIS 18119 at 40-41 n. 21. A critical focus of the modiﬁed control test is whether "the non-covered entity here, the White House has manifested a clear intent to control the documents." Id. at 37. If the parties would like the opportunity to address the relevance, if any, of the D.C. Circuit's recent decision in Judicial Watch to the issues raised by the withholding of the requested documents in the instant case, the parties are directed to submit jointly, by September 16, 2013, a schedule for supplemental brieﬁng. Signed by Judge Beryl A. Howell on 09/09/2013. (lcbah2) (Entered: 09/09/2013)

09/09/2013

Set/Reset Deadlines: Joint schedule for supplemental brieﬁng due by 9/16/2013. (tg, ) (Entered: 09/09/2013)

09/16/2013 25 NOTICE of Appearance by Amie L. Stepanovich on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Stepanovich, Amie) (Entered: 09/16/2013)

09/16/2013 26 STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 09/16/2013)

10/21/2013

27 MEMORANDUM AND OPINION regarding the defendant's 12 Motion for Summary Judgment and the plaintiff's 13 Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1) (Entered: 10/21/2013)

10/21/2013 28 ORDER GRANTING in part and DENYING in part the defendant's 12 Motion for Summary Judgment; GRANTING in part and DENYING in part the plaintiff's 13 Motion

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for Summary Judgment and DENYING the plaintiff's 13 Motion for Hearing as moot. The parties shall, by November 4, 2013, jointly ﬁle a proposed schedule to facilitate the timely production of records responsive to the second portion of the plaintiff's FOIA request and resolution of any disputes which may arise regarding their production. See Order for further details. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1, ) (Entered: 10/21/2013)

10/22/2013

Set/Reset Deadlines: Response to Order of the Court due by 11/4/2013. (tg, ) (Entered: 10/22/2013)

11/04/2013

29 STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/04/2013)

11/04/2013

MINUTE ORDER (paperless) entering the following SCHEDULING ORDER to control further proceedings in this matter. The defendant shall, by November 8, 2013, provide any remaining responsive records to the plaintiff or, in the alternative, submit a Vaughn index detailing the records or portions of records being withheld. The parties shall, by November 15, 2013, jointly ﬁle a proposed brieﬁng schedule to resolve any outstanding disputes in this matter or advise the Court that this case should be closed. Signed by Judge Beryl A. Howell on November 4, 2013. (lcbah1) (Entered: 11/04/2013)

11/05/2013

Set/Reset Deadlines: Defendant's Responsive records or in the alternative a Vaughn Index due by 11/8/2013. Joint Brieﬁng Schedule due by 11/15/2013. (tg, ) (Entered: 11/05/2013)

11/15/2013

30 STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/15/2013)

11/15/2013

MINUTE ORDER (paperless) CLOSING this matter. In light of the parties' 30 Joint Status Report, in which the parties state that there "are no further substantive issues to be resolved by this Court," the Clerk is directed to close this case. The Court retains jurisdiction of this matter for the purposes of determining appropriate allocation of fees and costs, if judicial intervention is warranted. The parties are ORDERED to jointly ﬁle, by December 16, 2013, a status report indicating whether brieﬁng on fees and costs will be necessary and, if so, a proposed schedule for such brieﬁng. Signed by Judge Beryl A. Howell on November 15, 2013. (lcbah1) (Entered: 11/15/2013)

11/19/2013

Set/Reset Deadlines: Joint Status Report due by 12/16/2013. (tg, ) (Entered: 11/19/2013)

12/16/2013 31 STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 12/16/2013)

12/17/2013

MINUTE ORDER (paperless) DIRECTING the parties, pursuant to their 31 Joint Status Report, jointly to ﬁle, by December 20, 2013, a status report advising the Court whether additional proceedings are necessary in this matter. Signed by Judge Beryl A. Howell on December 17, 2013. (lcbah1) (Entered: 12/17/2013)

12/17/2013

Set/Reset Deadlines: Joint Status Report due by 12/20/2013. (tg, ) (Entered: 12/17/2013)

12/17/2013

32 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 28 Order on Motion for Summary Judgment,, Order on Motion for Hearing,,,,,, 27 Memorandum & Opinion by ELECTRONIC PRIVACY INFORMATION CENTER. Filing fee $ 505, receipt number 0090-3568134. Fee Status: Fee Paid. Parties have been notiﬁed. (Rotenberg, Marc) (Entered: 12/17/2013)

12/18/2013

33 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 32 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 12/18/2013)

12/20/2013 34 STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory)

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MINUTE ORDER (paperless) DIRECTING the parties, upon consideration of their 34 Joint Status Report and the pendency of an appeal in this case, jointly to ﬁle, within 30 days of the disposition of the appeal, a status report advising the Court whether additional proceedings are necessary in this matter. Signed by Judge Beryl A. Howell on December 23, 2013. (lcbah1) (Entered: 12/23/2013)

USCA Case Number 13-5369 for 32 Notice of Appeal to DC Circuit Court, ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 12/24/2013)

35 NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Amie L. Stepanovich terminated. (Stepanovich, Amie) (Entered: 02/03/2014)

36 NOTICE of Acceptance with Offer of Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Exhibit A: Offer of Judgment, # 2 Exhibit B: Proof of Service) (Dworkowitz, Gregory) (Entered: 02/10/2014)

37 CLERK'S JUDGMENT ON OFFER AND ACCEPTANCE in favor of ELECTRONIC PRIVACY INFORMATION CENTER against UNITED STATES NATIONAL SECURITY AGENCY (tg, ) (Entered: 02/11/2014)

38 ORDER of USCA (certiﬁed copy) as to 32 Notice of Appeal to DC Circuit Court, ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER ; USCA Case Number 13-5369. ORDERED that the joint motion be granted.(kb, ) (Entered: 08/12/2014)

39 NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 09/02/2014)

40 NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 09/02/2014)

41 STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 09/02/2014)

MINUTE ORDER (paperless) DIRECTING the parties, in light of their 41 Joint Status Report, to ﬁle jointly a status report with the Court by October 2, 2014, proposing a schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on September 2, 2014. (lcbah1) (Entered: 09/02/2014)

Set/Reset Deadlines: Joint Status Report due by 10/2/2014. (tg, ) (Entered: 09/03/2014)

42 STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 10/02/2014)

MINUTE ORDER (paperless) DIRECTING the parties, in light of their 42 Joint Status Report, to ﬁle jointly a status report with the Court by October 16, 2014, proposing a schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on October 3, 2014. (lcbah1) (Entered: 10/03/2014)

Set/Reset Deadlines: Joint Status Report due by 10/16/2014 (tg, ) (Entered: 10/06/2014)

43 STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 10/16/2014)

MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER, in light of the parties' 43 Joint Status Report: the plaintiff shall, by October 31, 2014, ﬁle any motion for attorneys' fees; the defendant shall, by November 24, 2014, ﬁle any opposition;

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the plaintiff shall, by December 8, 2014, ﬁle any reply. Signed by Judge Beryl A. Howell on October 17, 2014. (lcbah1) (Entered: 10/17/2014)

10/17/2014

Set/Reset Deadlines: Plaintiff's Motion for Attorney Fees due by 10/31/2014; Opposition due by 11/24/2014; Reply due by 12/8/2014. (tg, ) (Entered: 10/17/2014)

10/31/2014

44 MOTION for Attorney Fees and Costs by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Text of Proposed Order)(Butler, Alan) (Entered: 10/31/2014)

11/24/2014

45 Memorandum in opposition to re 44 MOTION for Attorney Fees and Costs ﬁled by NATIONAL SECURITY AGENCY. (Attachments: # 1 Exhibit A: Parties' D.C. Circuit Joint Mot., # 2 Exhibit B: EPIC Nov. 2013 Draft Bills, # 3 Exhibit C: EPIC Sept. 2014 Draft Bills, # 4 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 11/24/2014)

12/08/2014

46 REPLY to opposition to motion re 44 MOTION for Attorney Fees and Costs ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Declaration of Alan Butler, # 2 Afﬁdavit of Alan Butler, # 3 Afﬁdavit of Marc Rotenberg, # 4 Afﬁdavit of T. John Tran)(Butler, Alan) (Entered: 12/08/2014)

12/17/2014

47 MOTION for Leave to File Surreply by NATIONAL SECURITY AGENCY (Attachments: # 1 Exhibit A: Proposed Surreply, # 2 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 12/17/2014)

12/17/2014

MINUTE ORDER (paperless) GRANTING the defendant's 47 Motion for Leave to File Surreply. The defendant's Surreply, ﬁled at Docket Number 47-1, is deemed ﬁled as of this date. Signed by Judge Beryl A. Howell on December 17, 2014. (lcbah1) (Entered: 12/17/2014)

12/17/2014 48 SURREPLY to re 44 MOTION for Attorney Fees and Costs ﬁled by NATIONAL SECURITY AGENCY. (rdj) (Entered: 12/17/2014)

12/18/2014

49 MOTION for Leave to File a Sur-Surreply by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit 1: Proposed Sur-Surreply, # 2 Text of Proposed Order) (Butler, Alan) (Entered: 12/18/2014)

12/18/2014

MINUTE ORDER (paperless) GRANTING, over the objection of the defendant, the plaintiff's 49 Motion for Leave to File a Sur-Surreply. The plaintiff's sur-surreply, ﬁled at Docket No. 49-1, is deemed ﬁled as of this date. Signed by Judge Beryl A. Howell on December 18, 2014. (lcbah1) (Entered: 12/18/2014)

12/18/2014 50 Sur-SURREPLY to re 44 MOTION for Attorney Fees and Costs ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 12/18/2014)

04/08/2015

51 MEMORANDUM OPINION regarding the plaintiff's 44 Motion for Attorneys' Fees and Costs. Signed by Judge Beryl A. Howell on April 8, 2015. (lcbah1) (Per Order of the Court entered on 5/20/2015, Document 51 was modiﬁed on 5/21/2015 to correct a word.) (tg, ). (Entered: 04/08/2015)

04/08/2015

52 ORDER GRANTING in part and DENYING in part the plaintiff's 44 Motion for Attorneys' Fees and Costs. The defendant shall, by May 11, 2015, pay the plaintiff $31,180.00 for its reasonable attorneys' fees and costs incurred as a result of this litigation. See Order for further details. Signed by Judge Beryl A. Howell on April 8, 2015. (lcbah1) (Entered: 04/08/2015)

04/09/2015

Set/Reset Deadlines: Defendant's payment of $31,180.00 to the Plaintiff due by 5/11/2015. (tg, ) (Entered: 04/09/2015)

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53 MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Rotenberg, Marc) (Entered: 04/17/2015)
54 Unopposed MOTION for Extension of Time to Make Payment to Plaintiff by NATIONAL SECURITY AGENCY (Attachments: # 1 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 04/28/2015)
MINUTE ORDER (paperless) GRANTING the defendant's 54 Unopposed Motion for Extension of Deadline by Which it Must Make Payment to Plaintiff. The defendant shall pay the plaintiff any outstanding attorneys' fees within thirty days of the expiration of the period contemplated in Federal Rule of Appellate Procedure 4 for the defendant to notice an appeal or a cross-appeal. Signed by Judge Beryl A. Howell on April 28, 2015. (lcbah1) (Entered: 04/28/2015)
55 Memorandum in opposition to re 53 MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, ﬁled by NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 05/01/2015)
56 REPLY to opposition to motion re 53 MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, ﬁled by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 05/08/2015)
MINUTE ORDER (paperless) DENYING in part and GRANTING in part the plaintiff's 53 Motion to Alter or Amend the Court's Memorandum Opinion and Order of April 8, 2015. The 53 Motion is GRANTED insofar as the Court's use of the word "judgment" in referencing the plaintiff's settlement offers on page 18 of this Court's 51 Memorandum Opinion is AMENDED to read "Disturbingly, both offers of settlement from the plaintiff were extended within 24 hours of a deadline for a submission to the Court regarding the status of settlement discussions." The 53 Motion is DENIED in all other respects.

A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) "is an extraordinary remedy which should be used sparingly." Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (internal quotation marks omitted). Such motions "may not be used to... raise arguments or present evidence that could have been raised prior to the entry of judgment." GSS Grp. Ltd. v. Nat'l Port Auth., 680 F.3d 805, 812 (D.C. Cir. 2012) (internal quotation marks omitted; alteration in original). The plaintiff's 53 Motion provides more factual context for the plaintiff's rejection (by counteroffer) of the defendant's offers of judgment, and the plaintiff's subsequent extension of "exploding" settlement offers that would expire fewer than 24 hours later. See generally 53 Motion. The defendant clearly raised the issue of the plaintiff's negotiating strategy in its opposition, see 45 Def.'s Opp'n Pl.'s Mot. Attys.' Fees at 5, 24-25, but the plaintiff, in its reply, failed to counter the factual assertions as outlined by the defendant. Instead of disputing or correcting any such facts, the plaintiff made the strategic decision to challenge the defendant's introduction of this information as violative of Federal Rule of Evidence 408, see 46 Pl.'s Reply Def.'s Opp'n Pl.'s Mot. Attys.' Fees (Pl.'s Reply) at 20-22 and 20 n.6, an argument this Court rejected, EPIC v. NSA, No. 10-196, 2015 WL 1570060, at *9 n.7 (D.D.C. Apr. 8, 2105).

A Rule 59(e) motion "is not an opportunity for another bite at the apple." SmartGene, Inc. v. Adv. Bio. Labs., SA, 915 F. Supp. 2d 69, 78 (D.D.C. 2013) (internal quotation marks omitted). The plaintiff made a strategic choice not to challenge the factual underpinnings of the defendant's argument in favor of an attack on the admissibility of those facts in the ﬁrst instance. 46 Pl.'s Reply at 20-22 and 20 n.6. The plaintiff's strategy did not succeed,

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but that is not a sufﬁcient reason to reconsider the Court's decision, since the plaintiff had ample opportunity in its reply brief to raise the fact-based arguments it raises now. See Wannall v. Honeywell, Inc., 775 F.3d 425, 430 (D.C. Cir. 2014) (afﬁrming denial of motion for reconsideration based on plaintiff's failed strategic choice). Consequently, with the exception of the amendment on page 18 of the 51 Memorandum Opinion to clarify the Court's reference to the plaintiff's offers of settlement, the plaintiff's 53 Motion is DENIED. Signed by Judge Beryl A. Howell on May 20, 2015. (lcbah1) (Entered: 05/20/2015)

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