UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC. , Plaintiff,

v. OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE et al. , Defendants. Case No. 1:17-cv-00508 (TNM)

MEMORANDUM OPINION This matter is one of approximately 13 lawsuits filed by Judic ial Watch, Inc. (“Judicial Watch”) regarding Hillary Clinto n’s use of a private email serv er during her tenure as Secretary of State and her mishandling of classified information. Compl. ¶¶ 18-19, 22, 32, ECF No. 1. Judicial Watch seeks, through this Administrative Procedure Act (“APA”) action, a declaratory judgment and order that the Office of the Director of National Intelligence, among others (collectively, the “Government ”) should have and now must condu ct a damage assessment of former Secretary Clinton’s email practices as allegedly require d by Intelligence Community Directive (“ICD”) 732. Id . at 11. The Government’s motion to dismiss argues that Judici al Watch lacks standing—the const itutionally required predicate th at provides a plaintiff entrée into federal court, and which require s a showing that the plaintiff was actually injured by the wrong ascribed to the defendant. See Defs.’ Mot. to Dismiss 1, ECF No. 8. The Government further argues that the Complaint fa ils to state a claim upon which rel ief can be granted. Id. Having confirmed that jurisdiction and ve nue is proper in this Court, 1 and upon consideration of the

1 28 U.S.C. §§ 1331, 1391.2 pleadings, relevant law, and rel ated legal memoranda in opposit ion and in support, I find that Judicial Watch’s interest in f iling a Freedom of Information Ac t (“FOIA”) suit for disclosure of the requisite damage assessment does not create standing to enf orce ICD 732. Accordingly, the Government’s motion will be granted and the Complaint will be d ismissed without prejudice.

I. Background Judicial Watch, a not-for-prof it organization, seeks a declarat ory judgment and order against the Office of the Direct or of National Intelligence, th e U.S. Department of State, and the Acting Director of National Inte lligence, National Counterintel ligence Executive, and U.S. Secretary of State in their offi cial capacities. Compl. ¶¶ 4-8 ; id. at 11. Judicial Watch alleges that the Government was re quired, under ICD 732, to conduct a “ damage assessment” regarding Hillary Clinton’s use of a privat e email server while serving a s Secretary of Sta te and that its failure to do so prevented it from submitting a FOIA request fo r the report and records of the

assessment. Id. ¶¶ 13, 38. In particular, Judicia l Watch alleges that because the FBI found Secretary Clinton and her colleague s to be “extremely careless in their handling of very sensitive, highly classified i nformation,” resulting in the “po ssib[ility] that hostile actors gained access to Secretary Clinton’s personal e-mail account,” this tr iggered ICD 732’s requirement to conduct a damage assessment as a result of “an actual or suspec ted unauthorized disclosure or compromise of classified national intelligence that may cause d amage to U.S. national security.”
Id. ¶¶ 22, 35; ICD 732 § D.2 (June 27, 2014), ECF No. 8-2. Judici al Watch asks the Government’s inaction be declar ed “agency ac tion unlawfully withheld or unreasonably delayed” and as “arbitrary, cap ricious, an abuse of discretion, or otherwise not in accordance with law.” Compl. 11; see also 5 U.S.C. §§ 706(1), 2(A). The Govern ment contests that Judicia l Watch’s alleged injury—its inability to submit a FOIA request—c onstitutes an “injury-in-fact”3 to confer standing, and that Judici al Watch is in the “zone of interests” protected by the ICD. Defs.’ Mot. to Dismiss. 1-2.

II. Legal Standard The “core component of standing is an essential and unchanging part of the case-orcontroversy requireme nt of Article III.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). To meet this constitutional requirement, a plaintiff m ust suffer an “injury in fact,” an “invasion of a legally protected int erest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Id . (citations omitted) (int ernal quotation marks omitted). There must also exist a “causal connection between the injury and the conduct complained of”; and the injury m ust be of a type “likely” to be “redressed by a favorable decision.” Id. 560-61 (internal quotation marks omitted). “The party invokin g federal jurisdiction bears th e burden of establishi ng these elements” w ith the same “manner and degree of evidence required at the successive stages of the litigation .” Id. at 561. One type of concrete and particul arized injury in fact that may confer standing is informational injury, in which aparty shows that “it has been deprived of information that, on its interpretation, a statute requi res the government or a third pa rty to disclose to it, and [that] it suffers, by being denied access to that information, the type o f harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell , 828 F.3d 989, 992 (D.C. Cir. 2016) (citing FEC v. Akins , 524 U.S. 11, 21-22 (1998)). In addition to the “minimum require ments of Article III standin g,” to obtain judicial review under the APA, a party must show that the injury asserte d falls within the “zone of interests” of the statute. Animal Legal Def. Fund, Inc. v. Espy , 23 F.3d 496, 499, 501 (D.C. Cir. 1994); see also Lexmark Int’l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377, 13884 (2014) (the “zone of interests” limitation applies to all statu torily created causes of action, including those for judicial rev iew under the APA). Whether a plaintiff falls within the zone of interests “requires [courts] t o determine, using traditional to ols of statutory interpretation, whether a legislativ ely conferred cause of action encompasses aparticular plaintiff’s claim.” Id. at 1387. In other words, to be with in the zone of interests, aplaintiff “must show either a congressional intent to protector regulate the interest assert ed, or some other i ndication that the litigant is a suitable party t o pursue that interest in court.” Animal Legal Def. Fund , 23 F.3d at 502. Informational injuries “can s urmount the zone of interest s threshold only in very special statutory contexts.” Id.

III. Analysis Intelligence Community Directiv e 732, issued by then-Director o f National Intelligence James Clapper in June 2014, estab lishes the “policy for the con duct of damage assessments in response to the unauthorized disc losure or compromise of classi fied national intelligence.” ICD 732 § B.1. The policy specifies the parameters by which damage assessments are mandatory, see id. § D.2, and when they are permissive, see id. § D.3. When conducted, the policy also specifies what damage assessments shall inc lude; for instance, a “descrip tion of the circumstances under which the unauthorized disclosure or compromise transpired” and a “summary of findings for use in understanding and mitigating damage that could result fr om future unauthorized disclosures and compromises.” Id. § D.7. Judicial Watch contends that the FBI’s investigation into Hillary Clinton’s email pr actices while Sec retary of State unearthed findings t hat constitute precisely the scenario that requires a damage assessment under ICD 732 Section D.2, and that the Government’s failure to condu ct one harms Judicial Watch’s mission of public education.
See Mem. of P. & A. in Opp. to Defs.’ Mo t. to Dismiss (“Pl.’s Opp.” ) 7, ECF No. 10. As ICD5 732 provides no private right of act ion for enforcement, Judici al Watch has sued under the APA. See generally ICD 732; Compl. 11. Because Judicia l Watch fails to establishthat it has suffered an informational injury and tha t it is within ICD 732’s “zone o f interests,” it lacks standing to bring this challenge. 2

A. Informational Injury

Judicial Watch fails to establ ish that it has a concrete and particularized injury since the provision 3 under which it seeks information—ICD 732—does not require disc losure. It creatively argues that since IC D 732 requires a damage assessme nt, and FOIA requires disclosure, it meets the standard for informational injury. Pl .’s Opp. 9. Putting aside the Government’s arguments that the circumstances alleged by Judici al Watch do not trigger the mandatory assessment provision of ICD 732 and further, that cla ssified and law enforcement information may properly be withheld from disclosure under FOIA , bootstrapping ICD 732 to FOIA does not establish the depriv ation of a statutorily-requir ed disclosure. See Defs.’ Mot. to Dismiss 3, 11 n.7; Friends of Animals , 828 F.3d at 992.

2 Each of these failures provide s an independent reason to dism iss this action. See Animal Legal Def. Fund, 496 F. 3d at 498-99 (explaining the standards for constitution al standing and judicial review under the APA). Because I h old that Judicial Watch neit her has Article III standing nor is in the zone of interes ts such that this action is judicially re viewable, I do not nee d to address the reminder of the Government’s ar guments that Judicial Watch has failed to state a claim, nor need I decide whether to defer to the Government’s view that then-Se cretary Clinton’ s actions fall under ICD 732 Section D.3 (discre tionary damage assessments) ra ther than Section D.2 (mandatory damage assessments). See Defs.’ Mot. to Dismiss at 17-19 (citing Auer v. Robbins , 519 U.S. 452 (1997)).

3 The cases relied upon by the partie s involve federal statutes while ICD 732 is an administrative directive. The Plaintiff has not addressed, and the Government has not challenged, whether an informational injury could be established by an alleged failure to comply with a directive as opposed to a statute. For the purposes of this opinion, I assume without deciding that it can.6 Judicial Watch relies on two cas es to support its theory. One, Murray Energy Corporation v. McCarthy , is a non-controlling case from t he Northern District of West Virginia that was vacated in part by the F ourth Circuit on other grounds . No. 5:14-cv-39, 2016 WL 6083946 (N.D. W. Va. Oct. 17, 2016), vacated in part , Murray Energy Corp. v. Admin. of EPA , 861 F.3d 529, 537 (4th Cir. 2017) (declin ing to address the EPA ’s challenges to the district court’s standing rulings). In its brief discussion of informat ional injury, the district court found that it was sufficient for the plaintiffs to potentially “be en titled to the information which has not been collected or analyzed” and that the plaintiffs potentiallycould receive the information through a FOIA request. 2016 WL 6083946 at *16. Whether the s tatute, in conjunction with FOIA, afforded informational in jury was not a direct issue at question, and the court’s comparatively brief treatment of informational injury in relati on to its consideration of other bases for standing counsels that I not rely on it in my analysi s. Judicial Watch’s primary case law, Waterkeeper Alliance v. EPA , concerns the interrelation between two statute s, the Comprehensive Environme ntal Response, Compensation, and Liability Act of 1980 (“CERCLA” ) and the Emergency Planning and Community Right-toKnow Act of 1986 (“EPCRA ”). 853 F.3d 527, 530, 533 (D.C. Cir. 2017). As it pertains to the release of hazardous materials int o the environment, CERCLA and its implementing regulations requires farms over a particular s ize to report ce rtain informa tion to federal authorities while EPCRA requires all farms, regardl ess of size, to report the sam e information to relevant state and local agencies. Id. at 531-32. The EPA argued that th e plaintiffs did not have sta nding to sue under CERCLA because it does not have a provision requiring pub lic disclosure of the information reported, as EPCRA does. Id. at 533. The U.S. Court of A ppeals for the District of Columbia Circuit disagreed, findi ng that there is a “complex in terplay between CERCLA and7 EPCRA” such that exempting certa in information from CERCLA repo rting reduced the information required to be pub licly disclosed under EPCRA. Id. Furthermore, EPCRA’s reporting requirements are expres sly tied to CERCLA’s, making “ all of EPCRA’s reporting mandates [] piggybacked on the CE RCLA mandates in one form or a nother.” Id

. None of these circumstances are present in the current case. T he directive and FOIA are entirely different regimes, govern different conduct, and there is no express or implied interrelation between t he two. Whether information is required to be disclosed under ICD 732 has no effect on FOIA, for FOIA does not require the governmentto create documents but merely to produce documents that it already maintains. See Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 152 (1980) (“The Act d oes not obligate agencies to create or retain documents; it only oblig ates them to provide access t o those which it in fact has created and retained.”). The provisions of CERCLA and EPCRA analyzed i n Waterkeeper have a much closer, direct connection that i s utterly lacking between ICD 7 32 and FOIA. Friends of Animals v. Jewell , cited by the Government, is far more analogous to the present case. There, the same court that decided Waterkeeper held that the provision under which the plaintiff sued “does not itself mandate the disclosur e of any information” and that the plaintiff did not suffer an i nformational injury. 828 F.3d at 990. In Friends of Animals , the plaintiff sued under a provision of the Endangered Species Act that required the Secretary of the Interior to first , upon petition from any “interested person” to add or remove a species from the endangered or threatened species lists, to determine whether th e requested action should proceed for consideration; and if so, second , to determine whether the reque sted action is warranted, not warranted, or temporarily precl uded by other pending proposals. Id . The plaintiff’s proposal made it past the first step of this process, but the Secretary of the Interior failed to make a8 determination as to the second ste p within the statutorily-requ ired timeframe. Id . at 991. The plaintiff sought—similar to Judici al Watch in this case—a decla ratory judgment that the Secretary of the Interior violat ed the statute and an order dir ecting her to issue the determination.
See id . The court held that the pl aintiff failed to show “the sine qua non of informational injury” by “seeking to enforce a statut ory deadline provision that by i ts terms does not require the public disclosure of information.” Id. at 992. Though the Secretary of the Interior was required to publicly publish the result of t he second step of the process, the court identified that the redress that the plaintiffs sought—the making of an overdue decision onthe proposal—as pertaining to the act’s “deadline requireme nt” as opposed to the act’s distin ct disclosure requirement. Id. at 993. In its analysis, the court sp ecifically considered and re jected the plaintiff’s argument that “[t]ogether . . . those two require ments confer on it ‘the righ t to timely information.’” Id. Similar to Friends of Animals s eeking to “enforce [the statute’ s] deadline requirement, not its disclosure requirement,” Judicial Watch seeks to requir e the Government to perform an action, and is not suing under a disclosure requirement. See id. at 994. This deficiency is compounded in Judicial Watch’s case as the information it seeks is not required to be disclosed by the terms of the directive it self. Even more significant, h owever, is the fact that ICD 732 and FOIA govern entirely distinct subj ect matter and have polar opp osite purposes (na tional security versus public access to information). The facts of this case a re far afield from Friends of
Animals , where the plaintiff attempte d to allege information injury by conjoining two sections of the same statute—and even in tha t case, the D.C. Circuit held t hat there was no informational injury since relief was plainl y sought under the statute’s dead line requirement. Following the logic of Friends of Animals , Judicial Watch may not join together what others have put asu nder in an effort to sufficiently a llege informational injury.9 B. Zone of Interests In addition to lacking constitutional standing, Judicial Watch fails to show that it is within the “zone of interests ” of ICD 732. The directive’s pur poses are clearly stated: to “[e]stablish [a] policy for the conduct of damage assessments i n response to the unauthorized disclosure or compromise of cla ssified national intelligence; [ p]rovide a process for coordination and cooperation within the Intelli gence Community (IC) [to prod uce damage assessments] in an efficient, timely, consistent a nd collaborative manner; and [p] rovide a process for the IC to use the findings and recommendations from damage assessments to str engthen the protection of classified national intellig ence”. ICD 732 § B. The common th read among these stated intentions is the analysis and advancement of the Intelligence Community’s protection of classified national intelligen ce. Plus, all of ICD 732’s provi sions indicate processes internal to the Intelligence Community. Conspicuously absent from ICD 732’ s purposes and provisions is any intention to make damage assessments or the other processes established available for general public consumption. Indeed , an intent to publicly disc lose the Intelligence Community’s analysis and recommendations w ould seem to be incongruous with the directive’s national security-focused outcomes, such as strengthening the country’s protection of classified national intelligence. And, of course, our c ountry’s Intelligence Community is fiercely protective of intelligence analyses, and is not known for willingly publicly disseminating them. The Plaintiff argues that ICD 732 “cannot be analyzed in a vacu um” and that the statute and Executive Orders under which ICD 732 was created also addre ss the dissemination of information, which Judicial Watc h has an interest in given thei r mission statement and “extensive use of FOIA.” Pl. ’s Opp. 13-14. But Judicial Watch has not sued under the National Security Act or the Executive Orders, nor has it alleged that I CD 732 interrelates or is subject to