# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2015 Decided April 24 , 2015

No. 14

- 5174

F REEDOM W ATCH
, I NC
., A PPELLANT

v.

N ATIONAL S ECURITY A GENCY
, ET AL
.,

A PPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:12

- cv

- 01088)

Larry Klayman argued the cause and filed the briefs for appellant.

Catherine H. Dorsey , Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief

were Ronald C. M

achen

, Jr. , U.S. Attorney at the time the brief was filed, and Matthew M. Collette , Attorney.

Before: R OGERS
, T ATEL
, and S RINIVASAN
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.2

T ATEL
, Circuit Judge : On June 1, 2012, the New York
Times published an article by investigative reporter David E. Sanger describing a classified government initiative to

“ undermine the Iranian nuclear program ” through “increasingly sophisticated attacks on the computer systems that run Iran’s main nucl ear enrichment facilities.” David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against
Iran , N.Y. T IMES , June 1, 2012, at A1 . Later that day, appellant Freedom Watch, a self

- styled “public interest group acting on behalf of the public at large,” App ellant’s B r. 2,
filed a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552

, seeking records relating to the Sanger article
from four federal agencies

— th e Central Intelligence Agency (CIA ) , the National Security Agency ( NSA), the Departmen t of Defense (DoD ), and the State Department

. Specifically

, Freedom Watch sought do c u ments concerning each of the following topics (only the second is at issue here):

1) Any and all information that refers or relates
to the New York Times article

. . . and wh ich information was provided and leaked to Mr. Sanger and the New York Times;

2) Any and all information that refers or relates in any way to information released to David E. Sanger and/or made available to him;

3) The names of the persons, employers and job

t itles, and address es of those who leaked the above information to David E. Sanger;3

4) Communications with The White House
and/or Office of the President and/or Vice President that refer or relate in any way to the
leaked information and/or the reasons for
le aking the information;

5) Any and all information that refer [ s ] or relate [ s ] to the decision to leak the above previously classified information; [and]

6) Any and all information that refers or relates to government agenci es deciding to investigate who leaked the above previously
classified information.

Compl. 2

– 3 (internal quotation marks omitted).

Three of the agencies

— CIA, NSA, and DoD

— denied the request on national security ground s. Issuing what is known as

a Glomar response, each agency stated that it co uld “ neither confirm nor deny the existence or non

- existence ” of responsive records. S ee Defs.’ Mot. for J. on the Pleadings & Mot. for Partial Summ. J. 2

– 4 & Ex s . A , B, D (citing 5 U.S.C. § 552(b)(1)) . CIA and NSA also advised Freedom Watch of its right to administratively appeal, and the State Department
informed the organization that it was processing the request. See id

. at Ex. C ; see also 5 U.S.C. § 552 (a)(6)(A)(i).

After FOIA’s twenty

- day deadline expired, 5 U.S.C. § 552 (a)(6)(A), Freedom Watch filed suit in the U.S. District Court for the District of Columbia seeking to compel the four agencies to search for and produce responsive documents. Contending that Freedom Watch had failed to exhaust its administrative remedies, two of the agencies

— CIA and4

NSA

— moved for judgment on the pleadings , and Do D

, relying on FOIA’s national security exemption, 5 U.S.C. § 552 (b)(1), moved for summary judgment. The district court granted ea ch motion, resolving all claims in those agencies’ favor. The State Department also moved for judgment on the pleadings , and the district court, finding requests 1 and 3

– 6 unduly speculative, granted the motion as to all but the second, i.e., information released to David Sanger. See Defs.’
Mot. for J. on the Pleadings & Mot. for Partial Summ. J.
8

– 18; Freedom Watch, Inc. v. NSA

, No. 1:12

- cv

- 01088, 2014 WL 2768849, at *1 (D.D.C. June 12, 2014) (citing District Court Order, Docket No. 8 (D ec. 13, 2012)).

Undertaking both electronic searches of record systems and manual searches of physical documents, the State Department discovered and produced three responsive
records. But a fter moving for summary judgment on the ground that it had thus satisfied its FOIA obligations, the Department found additional responsive records and decided

to search other locations

. To accomplish this, it sought and
received a 60

- day extension to conduct a supplemental search
and to respond to Freedom Watch’s oppos ition brief, during which time it uncovered 76 more responsive documents. In the end, the State Department produced a total of 79
docume nts responsive to Freedom Watch’ s FOI A request, releasing 58 in full and 20 in part, and withholding one in its entirety

. See Freedom Watch , 2014 WL 2768849, at *1

– 2 (outlining search efforts and sequence of events). Responding

t o Freedom Watch’s opposition brief, the Department
described its additional search efforts and stated that it “would not oppose the filing of a surreply [by Freedom Watch] to address the documents produced as a result of th[e] supplemental search.” State Dep’t Reply in Supp. of Mot. for
Summ. J. 2 n.1. Freedom Watch never filed a surreply, though5

it did mo ve to depose a State Department records custodian, arguing that the initial search was part of a pattern of “delay, obfuscation, and outright obstruction of justice.” Mot. for Discovery 1. Th e district court, f inding no evidence of bad faith by the State D epartment, denied the motion. See Freedom Watch

, 2014 WL 2768849, at *2 (citing District Court Minute Order (June 18, 2013)). The court also granted the State Department’s motion for summary judgment, noting that “ Freedom Watch does not object to the adequ acy of the [Department’s] supplemental searches ” and concluding that the State Department had “ met its burden by conducting searches that were reasonably calculated to find responsive
records .” Id. at *3

– 4.

In this appeal, Freedom Wa tch challenges the Gl omar responses of NSA, CIA, and DoD, as well as the adequacy of
the Stat e Department’s search. As to that search, Freedom Watch argue s that the district court erred in granting the State Department summary judgment because (1) the search impermissibly enta iled electronic key

- word search es , (2) the Department improperly withheld a one

- page press

- briefing memo pursuant to FOIA’s deliberative

- process privilege, 5 U.S.C. § 552(b)(5), and (3) Freedom Watch was entitled to
additional discovery

— in particular, an o pportunity to depose a State Department records custodian

— before summary judgment.

After briefing was complete in this court but prior to oral argument, Freedom Watch moved to supplement the record
with news articles relat ing to the revelation that former Secretary of State Hillary Clinton , while leading the State Department, had maintained a private email account run on a private server

. See Appellant’s Mot. to Supplement R.; s ee also , e.g. , Danny Yadron & Rebecca Ballhaus, H illary6

Clinton’s Custom Email Based on Server Near Her Home

, W ALL S T

. J. , Mar. 5, 2015

. Alleging that the State Department had failed to produce all records responsive to its FOIA request due to the former Secretary’s use of the private server,
Freedom Wat ch sought to “expand [the] search for documents on remand.” Appellant’s Mot. to Supplement R. 1

– 2. In response, the government suggested that we remand the case
to the district court to “permit the State Department to process and search the emails recently provided by former Secretary Clinton to the agency.” Gov ’ t Resp. to Mot. to Supplement R.
2. T he government explained that the State Department plans to review those emails for possible public release and to make them “available to the public by posting t hem on a State Department website.” Id. This plan , the government asserted, would not only render unnecessary Freedom Watch’s request to supplement the record, but also “ make the maximum number of records available to plaintiff

. . . in the shortest

amount of time, and [] be considerably more efficient than reviewing the documents piecemeal in response to subject

- specific FOIA requests.” Id. T he government also explained that the Department’s search for responsive records
had been more extensive than descri bed to the district court

, even “including some records of the Office of the Secretary

. ”
Id. at 3. A s a result, “partial remand is appropriate to provide the State Department an opportunity to supplement the record as to what searches were actually performed with regard to records maintained by the Executive Secretariat.” Id. at 3

– 4.

Based on the government’s repr esentations , we shall deny Freedom Watch’s motion to supplement the record and remand to the district court to manage record development and oversee the search of the former Secretary’s emails for records responsive to Freedom Watch’s FOIA request. In
doin g so, we remind the State Department that

, although it7

may choose of its own accord to release the emails to the public at large, it has a statutory duty to search for and produce documents responsive to FOIA requests “in the shortest amount of time.” Id. at 2; see also 5 U.S.C. § 552(a)(6)(A) (providing FOIA’s stringent ti me limits). The
district court should therefore determine the most efficient way to proceed under FOIA

.

This leaves Freedom Watch ’s remaining arguments

, which we can easily reso lve. As to the Glomar responses of NSA and CIA, the district court properly granted the agencies judgment on the pleadings because Freedom Watch failed to internally appeal the agencies’ denials and thus to exhaust its
administrative remedies before seekin g judicial review. See
Sinito v. DOJ , 176 F.3d 512, 516 (D.C. Cir. 1999) (“ FOIA requires each requestor to exhaust administrative remedies ” before seeking judicial review). Summary judgment in favor of DoD was likewise proper because the agency supported i ts Glomar response with an uncontroverted declaration explaining “the justifications for nondisclosure with reasonably specific detail .” Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007) (internal quotation marks and citation omitted). A s the declaration explains , because Freedom
Watch seeks documents concerning a leak of information about cyberattacks on Iran’s nuclear facilities, “[a]cknowledging the existence or non

- existence of records responsive to plaintiff’s request could reveal whether the
United S tates, and specifically DoD, conducts or has conducted cyber

- attacks against Iran.” Defs.’ Mot. for J. on the Pleadings & Mot. for Partial Summ. J. Ex. D

, at 4

. In DoD’s judgment, such a disclosure would “cause damage to national security by providing insi ght into DoD’s military and intelligence capabilities and interests,” id. at 5, and we accord that judgment “substantial weight,” Wolf , 473 F.3d at 3768

(courts must accord “substantial weight” to “agency assertions of potential harm made in order to invoke the protection of FOIA[’ s national security exemption]”).

All of Freedom Watch’s objections to the district court’s grant of summary judgment to the State Department fail as well . First, although the State Department provided declarations outlining its search methods, which includ ed
full

- text electronic searches for relevant terms like “Sanger” and “David Sanger, ” s ee State Dep’t Mot. for Summ. J.

, Attach. 1

, at 6

– 7 ; State Dep’t Reply in Supp. of Mot. for Summ. J., Attach. 1, at 4

– 7, Freedom Watch never objected in the district court to the Department’s use of key

- word
searches

. “I t is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. A ir Florida, Inc. , 750 F.2d 1077, 1084 (D.C. Cir. 1984 )

. In any event, not only does FOIA expressly permit automated searches, see 5 U.S.C. § 552(a)(3)(D) (explaining that “‘search’ means to review, manually or by automated means ”) (emphasis added), but
Sta te Department employees also manually searched files for responsive documents, see State Dep’t Mot. for Summ. J.,
Attach. 1 , at 7; State Dep’t Reply in Supp. of Mot. for Summ. J., Attach. 1

, at 3

– 7. Freedom Watch likewise forfeited its challenge to the Dep artment’s withhold ing of the

press

- briefing memo. T he Department invited Freedom Watch to file a surreply to “address the documents produced as a result of [the Department’s] supplemental search,” including the briefing memo, State Dep’t Reply in Supp. of Mot. for
Summ. J. 2 n.1, but Freedom Watch failed to do so. Finally

, we see no abuse of discretion in the district court’s denial of Freedom Watch’s request for additional discovery

. See SafeCard Serv ice s, Inc. v. SEC , 926 F.2d 1197, 120 0 (D.C. Cir. 1991) ( “ This court w ill overturn the district court’ s9

exercise of its broad discretion to manage the scope of discovery only in unusual circumstances. ”)

. As we have explained, “[a] n agency may establish the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits describing its efforts. ” B aker & Hostetler LLP v. U.S. Departmen t of Commerce , 473 F.3d 312, 318 (D.C. Cir. 2006)

. Because t he State Department did exactly that

, the
district court “ ha[d] discretion to forgo d iscovery and award summary judgment on the basis of affidavits. ” Goland v. CIA

, 607 F.2d 339, 352 (D.C. Cir. 1978) . To be sure, Freedom Watch argued that “the circumstances [of the search] raise a presumption [of] bad faith behavior” by the State Department such that additional discovery w as justified. Appellant’s Br.
34. But Freedom Watch offered no evidence to support that allegation, and “[a] mere assertion of bad faith is not sufficient to overcome a motion for summary judgment.”
Baker & Hostet ler LLP , 473 F.3d at 318 (internal quotation marks and citation omitted).

For the foregoing reasons, we remand to the district court to proceed in accordance with this opinion and affirm in all other respects.

So ordered.