UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

_______________________________________ ) NATIONAL SECURITY COUNSEL ORS ) ) Plaintiff, )

) v. ) Civil Action No. 1:11-c v-00442 (RMC) ) CENTRAL INTEL LIGENCE AG ENCY, ) DEP ARTMENT OF DEF ENSE ) ) Def endants. ) _______________________________________)
MEMORAN DUM OP INION Plaintiff National Secur ity Counselors (“N SC”) is a non-prof it org anization that disseminates information to the public re g ardingg overnme nt activity related to national sec urity
. NSC made Fr eedom of

Information Ac t (“F OIA”) , 5 U.S.C. § 552, requests to the Central Intellige nce A g ency

(“CIA”) and the De partment of D efe nse (“ DOD” ) re lating to the Def endants’ Ma

ndatory Dec lassification Review ( “MDR”) prog rams. Unsatisfied with the response s it rece ived, NSC sued both the CI A and the D OD. The CI A moves for summary judgme nt on Counts 1 and 2 of the First Ame nded Complaint. The Court will deny the CI A’s motion for summary

judgme nt. I. F ACTS NSC filed two FOIA re quests with the CI A re lating to its MDR prog ram. The first reque st was submitted on April 23, 2010 and the sec ond on November 30, 2010.A. F irst Re quest (No. F -2010-01033) On April 23, 2010, NSC submit ted a F OI A re quest to the CI A for “ copies of a ll
curr ent [CI A] regulations, policy statements, guidelines, memoranda , training materia ls, handbooks, manua ls, chec klists, worksheets, instructions, and similar documents on the topic of [MDR ].” Mot. S umm. J ., Dec laration of Martha L utz [ Dkt. # 22-1] (“L

utz Decl.”), Ex. A. In this letter, NSC specified that the “ reque st is li mited to documents in curre nt use as of 23 A pril 2010.” Id. The CIA ac knowledg ed re ceipt of this re quest on May 5, 2010 and desig nated it as Request No. F -2010-01033. Id. , Ex . B. N SC subs equently — by letter dated May

7, 2010 — clar ified the date limitation pl ace d on its request, stating that “cur rent” should not be limi ted to April 23, 2010 and that “ any rec ords that re prese nted policies or pr actice s that were implemented afte r [April 23, 2010] ” should also be de emed r esponsive. Id. , Ex . C.

The CIA follows a standa rd proc edure when r espondingto FOIA re quests. The Information Mana g ement Servic es (“ I MS”) serve s as the “initial re ception point for a ll FOIA reque sts made to the CI A.” Id. ¶ 19. Onc e a r equest is re ceive d, an I MS professional ana ly zes it to determine which of five ag ency direc torates is re asonably likely to contain re cords r esponsive to the particula

r re quest. Id . The CIA’s re cords sy stems are “dec entra liz ed and compar tmentalized,” making it necessa ry for a n Information ReviewOffic er ( “I RO”) to deter mine which compone nts within each of the identified direc torates a re r easona

bly likely to contain re sponsive rec ords. Id. ¶ 20. Once the components a re ide ntified, the I RO works with personne l from ea ch compone nt to devise a sea rch strateg y

tailored to the pa

rticular c onfig uration of the c omponents’ re cords sy stems, including whic h rec ords sy stems to searc h and which se arc h

-2-strateg ies to employ
. Id. Records loc ated through such sea rche s are then re viewed to de termine whether they are responsive a

nd whether

any FOIA exemption(s) applies. Id. Request No. F -2010-01033 wa s proce ssed ac cordingto this procedure
. Id. ¶ 24. I MS professionals deter

mined that the Dire ctor of Ce ntral Intellige nce A rea “Dire ctor’s A rea ” was the only

one of the five dire ctorates “re asonably likely ” to contain r esponsive mater ials. Id. ¶¶ 1, 24, 26. The Direc tor’s Are a “ma intains all internal Ag ency -wide r egulatory issuances in
one sea rcha ble re cords sy stem.” Id. ¶ 30. Amongthe var ious components of the Dire ctor’s A rea is the Offic e of the Chief Information Of fice r, which inc ludes the I MS. Id. ¶ 25. The I MS is responsible for

administering the MDR prog ram a nd maintains rec ords re lated to the program. Id. The Dire ctor’s A rea

conducte d a sea

rch of the ag ency-wide r ecor ds sy stem and also sea rche d “other I MS recor ds sy stems” for the reque sted MDR materials. Id. ¶ 30. The sea rch pr oduced one responsive doc ument, 32 C.F.R. § 1908, which is a CI A regulation on MDR. CI A issued a f inal response to Request No. F- 2010-01033 on May 24, 2011, informing NSC that a thoroug h sear ch had be en conduc ted and that one responsive document wa s located. Id. ¶¶ 11, Ex. D. The MDR re g ulation, 32 C.F.R. § 1908, was re lease d to NSC i n full. Id. ¶ 11, Ex. E.

B. Second Requ est ( No. F -2011-00396) On Novembe r 30, 2010, NSC submit ted an a dditional FOIA re quest to the CI A askingfor a

copy of the “ specia l proce dures f or the [Mandatory

Dec lassification] review of information per

taining to intellig ence activities . . . or intellige nce sour ces or methods’ deve loped by the Dire ctor of Ce ntral Intellige nce pur suant to Sections 3.6(e) of Ex ecutive O rder

12,958 and

-3-3.5(e) of Executive Orde r 13, 292.” L utz Decl., Ex . F. This re quest was a cknowledg ed on Dec ember

20, 2010. L ike the first re quest, this request wa s assig ned to the Dire ctor’s A rea to searc h for r esponsive docume nts beca use no other a

rea s were likely

to have r esponsive docume nts. Acc ordingto Ms. Lutz, “I MS searc hed re levant re cord sy stems containing all files re asonably likely to contain re sponsive materia ls and locate d no rec ords re sponsive to Plainti ff’ s reque st.” Lutz Decl. ¶ 33. F urthermor e, Ms. Lutz concludes that “no sea rch of CI A re cords would be likely to locate ‘ specia l proce dures f or the [Mandatory

Dec lassification] review of information perta ining to intellige nce sour ces or methods develope d by

the Dire ctor of Ce ntral Intellige nce pursuant to Sections 3.6(e) of Executive Orde r 12,958 and 3.5( e) of Ex ecutive O rder

13,292’ beca use . . . no such spe cial proc edure s were ever develope d by

the then Dire ctor of Ce ntral Intellige nce unde r these pr ovisions.” Id. ¶ 34.

On J anuar

y 27, 2011, the CI A provided a final re sponse to NSC stating that the CI A did not locate a

ny documents re sponsive to NSC’s request. Plaintiff appe aled the a dequac y of the CIA’s sea

rch to the CIA’s Relea se Panel. On Ma rch 15, 2011, the Release Panel denied NSC’s appea l and found that the CIA had c onducted a rea sonable sea

rch f or re sponsive documents. Id., Ex . K. II. LEGAL STANDARD

Under Rule 56 of the F eder al Rules of Civil P roce dure, summar y judgme nt must be g rante d when “ the pleading s, depositions, answers to interr og atories, a nd admissions on file, toge ther with the a ffidavits, if any , show that there is no ge nuine issue as to any materia l fac t and that the moving pa

rty is entitled to a judgme nt as a matter of law.” Fe d. R. Civ. P . 56(c) ; -4-Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). More over, summar y judgme nt is proper ly g rante d ag ainst a par

ty who “a fter a dequate time for discove ry and upon motion . . . fails to make a show ing suf

ficient to establish the e x istence of an ele ment essential to that par ty ’s
case , and on which that party will bear the burden of

proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgme nt, the court must drawall justifiable infere nces in the nonmovingparty ’s favor and a cce pt the nonmoving pa rty ’s evidenc e as true. Anderson , 477 U.S. at 255. A nonmoving pa rty , howeve r, must establish more than “ the
mere exis tence of a sc intill a of e vidence ” in support of its position. Id. at 252.

FOIA ca ses ar e ty

pically and appr opriately

decide d on motions for summary judgme nt. See, e .g., Miscavigev. IRS, 2 F.3d 366, 368 ( 11th Cir. 1993); Rushford v. Civiletti , 485 F. Supp. 477, 481 n.13 (D.D .C. 1980). In a F OIA ca se, a c ourt may awa rd summary judgme nt to an ag ency

upon the ag ency ’s showing that it conducted a sear ch “r easona

bly calc ulated to uncove r all re levant docume nts.” W eisberg v. U

nited States Dep’t of Justice , 705 F.2d 1344, 1351 ( D.C. Cir. 1983). The a dequac y of a se arc h is measure d by a standa rd of
rea sonablene ss, which must be dec ided on a c ase by case basis. Truit t v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir.1990). The que stion is whether the sea rch itself w as ade quate notwithstanding the f

act that other

responsive doc uments may exis t. Steinberg v. U

nited States Dep't of Justice , 23 F.3d 548, 551 ( D.C. Cir. 1994). An ag ency is not required to sea

rch e very
rec ord sy stem, but must conduct a g ood faith, re asonable sear ch of those r ecor d sy stems likely to possess the re quested infor mation. Oglesby v . United States Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990).

-5-III. ANALYSIS The Court finds that the CIA has fa iled to demonstrate that it conduc ted a
rea sonable a

nd adequa

te sea rch f or docume nts in response to Request No. F -2010-01033. Additionally , the af

fidavit submitted in support of the CI A’s motion for summary judgme nt is sufficie ntly

ambig uous to deny

the CI A summary

judgme nt with respec t to Request No. F- 2011- 00396. A. Request No. 01033: Adequacy of CIA’s Sear ch The CIA has fa iled to demonstrate that its sear ch wa s adequate. On a motion for summary judgme nt, an ag ency

may discharg e its burden by

submitt ing a

“re asonably

detailed aff idavit” desc ribingthe re asonable sear ch per formed a nd aver ringthat all files likely

to contain responsive doc uments were sear ched. Oglesby , 920 F.2d at 68. The Court of Appe als for the District of Columbia Circuit has descr ibed the ag ency ' s burden a s follows:

The a ffidavits of the r esponding ag ency [need not] s et forth with meticulous documentation the de tails of an epic sear ch for the reque sted rec ords. Rather, in the a bsence of counte rvailing evidenc e or a

ppare nt inconsistency

of proof , aff idavits that ex plain in rea sonable de tail the scope a nd method of the sea

rch c onducted by the ag ency

will suffice to de monstrate complianc e with the obligations im posed by

the FO IA. Perry v . Block, 684 F.2d 121, 127 ( D.C. Cir. 1982). At a minimum, an ag ency ’s af fidavit must descr ibe “wha

t rec ords wer e sea

rche d, by whom, and throug h what proc ess.” Steinberg , 23 F.3d at 552. Fur

thermore , the af

fidavit must ex plain the scope and method of the ag ency ’s sea rch in a “non-c onclusory

fashion.” See Swopev. United States De p’t of Justice , 439 F. Supp. 2d 1, 5 (D.D.C. 2006).

-6-The a ffidavit that the CIA re lies upon to demonstrate a rea sonable sea

rch is the Dec laration of Martha L

utz, t he I RO for the D irec tor’s ar ea. Ms. L utz described the g ener al proce ss for re sponding to F OIA re quests as we ll as the specif ic re sponse to Request No. F -2010- 01033. Ms. Lutz out lined how the CI A chose the Dire ctor’s A rea as the only

direc torate likely

to contain re sponsive materia ls beca use “[w]it hin the Direc tor’s Are a, I MS administ ers the CIA’s Ex ecutive O rder

Mandatory

Dec lassification Review pr og ram a nd maintains rec ords re lating to that prog ram.” Lutz Decl. ¶¶ 24- 25. The a ffidavit to this point i s sufficient a s it outl ines with
rea sonable de tail the CI A’s dec ision to l imit t he sea rch to the D irec tor’s Are a. When it comes to the actua l searc h for r ecor ds, howeve r, the de clar ation mere ly states that 1) “ the Dire ctor’s A rea conducte d a thoroug h and dilige nt searc h of re levant Dire ctor’s Are a re cords sy stems for [responsive docume nts] , ” and 2) the Dire ctor’s a rea sear ched a

rec ords sy stem that contains CI A re g ulations “as we ll as other I MS recor d sy stems.” Id. ¶¶ 29-30. The aff idavit conclude

s that a “thor oug h and dilige nt searc h” wa s conducte d, but does not detail what
sear ch ter ms were used, who c onducted the se arc h, how the sea rch w as conduc ted, or what the “other ” I MS recor ds sy stems were that wer e sea rche d. Acc ording ly , the af fidavit lacks suff

icient detail for the Court to determine whe ther the se arc h was a dequate , and the Court must deny the CI A’s motion for summary judgme nt on this C ount. See, e .g., Steinberg , 23 F.3d a t 552 (at a minimum , an ag ency ’s af fidavit must describe “ what re cords we re se arc hed, by whom, and throug h what proc ess.”) ; Morley v . Cent. Intelligence Agenc y , 508 F.3d 1108, 1122 ( D.C. Cir. 2007) (holdingthat ag ency ’s dec laration was insufficient be cause it provided only a “g ener al explanation of how the ag ency responds to all F OIA re quests” and f ailed to provide a

n explanation for how the se arc h was c onducted) ; Friends of Blackwater v. U nited States Dep’t of
-7-the Interior , 391 F. Supp. 2d 115, 121 (D.D .C. 2005) (findingthe ag ency ’s sea rch to be inadequate wher e the de clar ation did not describe spe cific se arc h terms); Oglesby , 920 F.2d at 68 (holding the ag ency ’s af

fidavit insufficient f

or summary

judgme nt beca

use the a ffidavit fa iled to explain how the searc h was c onducted a nd failed to identify

the sea rch te rms used); Banks v. United States Dep’ t of Justice , 538 F. Supp. 2d 228, 238 (D.D .C. 2008) (findingthat ag ency failed to de monstrate an a dequate sear ch whe n its affidavits lacke d specific ity and only stated that “re sponsible person(s) ” conduc ted “thorough and ef ficient [searc hes].”). B. Request No. 01033: Scope of the Request NSC originally

limit ed its reque st to documents that were “in cur rent use a s of 23 April 2010.” See Lutz Decl., Ex . A. Two da y s after the CIA conf

irmed re ceipt of N SC’s FOIA reque st, NSC wrote to the CI A to “cla rify and ame nd” its FOIA re quest. Id. , Ex . C. NSC clar ified that it was see king c urre nt documents; that the April 23, 2010 date w as the date of the submissi on; and that the CI A should not “exclude any rec ords” that we re implemente d afte r April 23, 2010. Id. The letter further stated that NSC’s “re quest is limi ted to documents in
curr ent use, a

nd rec ords that ar e no long er in use ma y be excluded.” Id. The pa rties dispute whether the CI A re asonably

construed the term “c urre nt” in its searc h. Although the re ha

ve bee n multipl e executive or ders that se t forth diffe rent MDR provisions, as of April 23, 2010, the ope rative Executive Or der w as 13,292. B eca use Executive Orde r 13,292 wa s the only executive orde r in forc e, the CIA asser ts that “[o] nly

documents used under the MDR provisions of Ex ecutive O rder 13,292 would have be en ‘in c urre nt use as of 23 April 2010.’” L

utz. Decl. ¶ 28.

-8-NSC disagr ees. A ccor ding to NSC, the MDR provisions of Executive Orde r

13,292 “ar e virtually

unchang ed fr om its predece ssor order , E.O. 12,958.” O pp’n at 3. As suc h,
acc ordingto NSC, “the vast majority of re sponsive rec ords, such a s chec klists, worksheets, and simil ar r efe renc e or tra ining doc uments, would still be used by CI A ana ly sts when proc essing MDR reque sts.” Id. Thus, these re cords would still be “c urre nt” eve n if they wer e deve loped under the prior, virtually

identical (w ith respec t to MDR) ex ecutive or der. The Court agree s with NSC t hat the scope of CI A’s sea rch mig ht have be en
unrea sonably

limit ed. Ag encie s should interpret the sc ope of F OI A re quests liberally
. See Nation Magazine, W

ashington Bureau v. United States Customs Serv. , 71 F.3d 885, 890 ( D.C. Cir. 1995) (citing Truit t , 897 F.2d at 544-55) (stating that ag encie s are under “ a duty to construe a F OIA re quest liberally”); Heme nway v. Hughe s , 601 F. Supp. 1002, 1005 (D.D .C. 1985) (“[A]ge ncies should g o as fa r as they rea sonably

can to e nsure that they

include what reque sters want to have included within the scope of their F OIA re quests.”). A dditionally , an ag ency is not permitted to deny

reque sters information by narr owing the scope of its searc h to exclude releva nt information. See H

eme nway , 601 F. Supp. at 1005 (“ [An ag ency cannot] rea d [a] reque st so strictly that the re quester is de nied information the a g ency well knows exists in its files.”). The results of the se arc h indicate that the CIA was a war e that NSC wanted materials in conne ction with Ex ecutive O rder

12,958 to the extent that they wer e still in “curre nt” use. The sear ch conducte d by

CI A produc ed only

one docume nt that it deemed re sponsive to Request No. F2010-01033. SeeLutz Decl., Ex . E. That docume nt was 32 C.F.R. § 1908, which is entitled, “Public Requests for Ma

ndatory Dec lassification Review of Classified I nformation Pursuant to Exe cutive O rder 12958 .” Id. (empha sis added). The ref ore, the CI A ca

nnot rea sonably

claim that
-9-it did not believe NSC sought mater ials in connec tion with Ex ecutive O rder 12,958 (to the extent those materia ls were still curr ent) whe n the sing le re sponsive document produc ed by CI A was based on Executive Or der 12,958.

I n sum, if chec klists, worksheets, and similar re fer ence and tra ining doc uments
wer e still being use d by

the CI A, although first utiliz ed under Ex ecutive O rder

12,958 and not Ex ecutive O rder

13,292, the CIA must “conduc t a sea rch r easona

bly calc ulated to uncove r” those documents. W

eisberg , 705 F.2d at 1351. The CI A must clarify whether such other doc uments exis t and, if so, conduc t a re asonable sear ch for them. B. Request No. 00396 Both Executive Or der 12,958 a nd 13,292 require various depa rtment hea ds to develop spe cial proc edure s with respec t to reviewingcer tain materia ls for mandatory decla ssification:

After consultation with affe cted a g encie s, the Secre tary of De fense shall develop spec ial proce dures f or the re view of c ry

ptologic information, the Direc tor of Central Intelligenceshall develop spec ial procedure

s for the review of information pertaining t o intelligence activities (

including special activities) , or intelligence source s or methods , and the Ar chivist shall develop spec ial proce dures f or the revie w of infor

mation acc essioned into the National Ar chives. Ex ec. O rder

No. 12,958 § 3.6(e ) (e mphasis added) ; Ex ec. O rder No. 13,292 § 3.5(e ) (same). NSC’s second F OIA re quest (No. F -2011-00396) soug ht a copy of the “ specia l proce dures f or the revie w of infor

mation pertainingto intelligenc e ac tiviti es (includingspecia l activities), or intelligenc e sourc es or methods” require d by the Executive Orde rs. L utz Decl., Ex . F. The CI A moves for summar

y judgme nt arguing that it could not find any rele vant documents a

nd that no specia l proce dures “ wer e eve r deve loped by the then Dire ctor of Ce ntral Intellige nce.” Id. ¶ 34.
-10-NSC takes issue with the latter phra se. As longas the phra se “the then Dire ctor of Ce ntral

Intellige nce” includes all Dire ctors of Centr al Intellige nce f rom the time Executive Orde r 12,958 was sig ned until the time of the sea rch, the n NSC has no problem with the sear ch conduc ted by the CI A and will voluntarily withdraw this par

t of its Com plaint. I f, howe ver, the phrase “the then Dire ctor of Ce ntral Intellige nce” ref ers only to J ohn Deutch ( the Dire ctor whe n Ex ecutive Orde r 12,958 wa s signe d) or Ge org e Te net (the D irec tor when Executive Or der 13,292 w as signe d) and not to any

other dire ctor(s) who may have a ctually

develope d the spec ial proce dures require d by

the executive orde rs, NSC argues, the CIA has “ completely subvert[ed] the plain meaningof the re quest” a nd summary

judgme nt should be denied. Pl.’s Opp’n [Dkt. # 24] at 10. In its reply , the CIA does not direc tly clar ify who is meant by

the phra se “the then Direc tor of Centra l I ntellige nce.” I nstead, the CIA states that “Plaintiff in ef fec t asks the Court to presume that Ms. Lutz us ed the phr ase ‘ the then Dire ctor of Ce ntral Intellige nce’ as a w ay to disguise that the ag ency

had sec retly

interpre ted Plaintiff’s re quest as only seekingspecia l proce dures de veloped by

one prior D irec tor of Centra l I ntellige nce. N o such distinction was intended.” Re ply

[Dkt. # 25] at 8. The Court finds the state ment sufficie ntly ambig uous, howeve r, that it cannot g rant summary judgme nt. I f spec ial proce dures we re not de veloped by any Direc tor of Centra l I ntellige nce f rom the time Executive Orde r 12,958 wa s signe d until the time of the sea

rch unde r F OIA, the af

fidavit ca n easily be cla rified to state a s much. Acc ording ly , the Court will deny without prejudice the CI A’s motion for summary judge ment with respec t to NCS ’s sec ond FOI A re quest.

-11-IV. CONCLUSION For the re asons stated, the CIA’s motion for summary judgme nt will be denied without prejudice.
Date: Ma rch 28, 2012 /s/ ROSEMARY M. COL L YER United States District J udg e

-12-