United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2015 Decided April 24, 2015

No. 14-5174

FREEDOM WATCH, INC.,

APPELLANT

v.

NATIONAL SECURITY AGENCY, ET AL.,

APPELLEES

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. Machen, Jr., U.S. Attorney at the time the 

brief was filed, and Matthew M. Collette, Attorney.

Before: ROGERS, TATEL, and SRINIVASAN, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge TATEL.
2

TATEL, 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 nuclear enrichment facilities.” David E. 

Sanger, Obama Order Sped Up Wave of Cyberattacks Against 

Iran, N.Y. TIMES, 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,” Appellant’s Br. 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—the Central Intelligence Agency 

(CIA), the National Security Agency (NSA), the Department

of Defense (DoD), and the State Department. Specifically, 

Freedom Watch sought documents 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 which 

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 

titles, and addresses 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 

leaking 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 agencies 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 grounds. Issuing what is known as 

a Glomar response, each agency stated that it could “neither 

confirm nor deny the existence or non-existence” of 

responsive records. See Defs.’ Mot. for J. on the Pleadings & 

Mot. for Partial Summ. J. 2–4 & Exs. 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 and 
4

NSA—moved for judgment on the pleadings, and DoD, 

relying on FOIA’s national security exemption, 5 U.S.C. 

§ 552(b)(1), moved for summary judgment. The district court

granted each 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 (Dec. 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 after 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 opposition brief, during 

which time it uncovered 76 more responsive documents. In 

the end, the State Department produced a total of 79 

documents responsive to Freedom Watch’s FOIA 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 

to 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, though 
5

it did move 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. The district court, finding no evidence of bad 

faith by the State Department, 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 adequacy 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 Watch challenges the Glomar

responses of NSA, CIA, and DoD, as well as the adequacy of 

the State Department’s search. As to that search, Freedom 

Watch argues that the district court erred in granting the State 

Department summary judgment because (1) the search 

impermissibly entailed electronic key-word searches, (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 opportunity 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 relating 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.; see

also, e.g., Danny Yadron & Rebecca Ballhaus, Hillary 
6

Clinton’s Custom Email Based on Server Near Her Home, 

WALL ST. 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 Watch 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. The 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 them 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. The government also

explained that the Department’s search for responsive records 

had been more extensive than described to the district court,

even “including some records of the Office of the Secretary.”

Id. at 3. As 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 representations, 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 

doing so, we remind the State Department that, although it 
7

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 time 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 resolve. 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 seeking 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 its 

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). As 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 States, 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 insight into DoD’s military and 

intelligence capabilities and interests,” id. at 5, and we accord 

that judgment “substantial weight,” Wolf, 473 F.3d at 376 
8

(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 included 

full-text electronic searches for relevant terms like “Sanger” 

and “David Sanger,” see 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. “It 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. Air 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

State 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 Department’s withholding of the 

press-briefing memo. The 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 Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. 

Cir. 1991) (“This court will overturn the district court’s 
9

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.” Baker & Hostetler LLP v. 

U.S. Department of Commerce, 473 F.3d 312, 318 (D.C. Cir. 

2006). Because the State Department did exactly that, the 

district court “ha[d] discretion to forgo discovery 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 was 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 & Hostetler 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.