1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FREEDOM WATCH, INC., Plaintiff ,

v. CENTRAL INTELLIGENCE AGENCY, et al. , Defendants. Civil Action No. 12-0721 (ESH)

MEMORANDUM OPINION Plaintiff Freedom Watch, Inc., has sued th e Central Intelligence Agency (“CIA”), the National Security Agency (“NSA”), the Department of Defense (“DoD”), and the Department of State (“State”), alleging that de fendants have violated the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (“FOIA”). (Complaint, May 2, 2012 [Dkt. No. 1] (“Compl.”).) Before the Court is defendants’ Motion to Dismiss (Aug. 17, 2012 [D kt. No. 6] (“Defs. Mot.”)), plaintiff’s opposition (Aug. 31, 2012 [Dkt. No. 9] (“Pl. Opp’n” )), and defendants’ reply (Sept. 10, 2012 [Dkt. No. 10] (“Defs. Reply”)). For the reasons stated, the Court will grant defendants’ motion.

BACKGROUND In April 2012, Freedom Watch sent identic al FOIA requests to defendants “seeking records about leaked information.” (Compl. ¶ 4.) The “crux of plaintiff’s FOIA request was the ‘leaked’ information that was obtained . . . by the New York Times in their two articles of March 17 and March 19, 2012.” (Pl. Opp’n at 12.) Freedom Watch’s request must be duplicated in its entirety. “Specifica lly, plaintiff sought: . . . all correspondence, memoranda, docum ents, reports, records, statements,2 audits, lists of names, applications, disk ettes, letters, expens e logs and receipts, calendar or diary logs, facsimile logs , telephone records call sheets, tape recordings, video/movie recordings, notes, examinations, opinions, folders, files, books, manuals, pamphlets, forms, drawi ngs, charts, photographs, electronic mail, and other documents and things (hereinafter , “information”) that refer or relate to the following in any way, within ten (10) business days as set forth below: 1) Any and all information that refers or relates to the New York Times article entitled “U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18, 2012; 2) Any and all information that refers or relates to the New York Times article “U.S. Simulation Forecasts Pe rils of Strike at Iran” by Mark Mazzetti and Thorn Shanker on Tuesday, March 20, 2012; 3) Any and all information that refe rs or relates to the Foreign Policy article entitled “Israel’s Secret Staging Ground” by Mark Perry on March 28; 4) All information “briefed on the results” of any war games or other simulations “leaked” or otherwis e provided about the 2010 National Intelligence Estimate, as mentioned in the NY Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18, 2012; bombers, re fueling aircraft, and precision missiles doing damage to the Iranian nuclear program; 11) Any and all information “leaked” a bout the results of testing internal military communications; 12) Any and all information “leaked” about American officials saying that they believe Israel woul d probably give the United States little or no warning should Israeli officials make the decision to strike Iranian nuclear sites; 13) Any and all information “leaked” about experts predicting that Iran would try to carefully ma nage the escalation after an Israeli first strike; 14) Any and all information “leaked” about experts believing that Iran would use an Israeli first strike as ra tionale for attacking the United States; 15) Any and all information “leaked” about military specialists who have assessed the potential ramifica tion of an Israeli attack; 16) Any and all information “leaked” about military specialists who claim it is not possible to predict how Iran will react in the he at of conflict; 17) Any and all information “leaked” about Israeli intelligence estimates backed by academic studies; 18) Any and all information “leaked” about the results of counterstrike by3 the Islamic Republic of Iran after an attack by Israel; 19) Any and all information “leaked” about the possibility of Israel striking the Islamic Republic of Iran within the next year; 20) Any and all information “leaked” about top administration officials saying that Iran has not decide d to pursue a nuclear weapon; 21) Any and all information “leake d” about American intelligence officials expressing confidence in the s py agencies’ asserti ons that Iran has not decided to pursue a nuclear weapon; 22) Any and all information “leaked” about former intelligence agents assessing the Islamic Republic of Iran’s ambition for a nuclear weapon; 23) Any and all information “leaked” discussing the difficulty of obtaining intelligence from the Isla mic republic of Iran; 24) Any and all statements made by the Islamic Republic of Iran saying that its nuclear program is fo r peaceful civilian purposes; 25) Any and all information “leake d” about American intelligence agencies and the International Atomic Energy Agency picking up evidence in recent years that some Ir anian research activities maybe be weapons-related continuing from 2003; 26) Any and all information “leaked” about Mossad’s agreement with American intelligence assessments; 27) Any and all information “leake d” about American intelligence agencies monitoring Iranian officials and scientists and nuclear sites in order to determine whether the weapons program has been restarted; 28) Any and all information “leaked” about how collecting independent human intelligence has been the most difficult task for American intelligence; 29) Any and all information “leaked” about technological mistake by a CIA agency officer in 2004 that put a whole network of Iranian agents in jeopardy; 30) Any and all information “leaked” about the Mujadhadeen Khalq or M.E.K. which is based in Iraq; 31) Any and all information “leaked” about the United States and Israel sharing information on the Islamic Republic of Iran; 32) Any and all information “leake d” about the United States placing clandestine ground sensors which can detect electromagnetic signals or radioactive emissions that could be li nked to nuclear activity near suspect Iranian facilities; 33) Any and all information “leaked” or otherwise provided to the media4 about eavesdropped or otherwise inte rcepted telephone c onversations of Iranian officials discussing their nuclear program, as mentioned in the NY Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18, 2012; 34) Any and all information “leaked” or otherwise provided to the media about Shahram Amiri, the Iranian scie ntist who defected from Iran in 2009 and then went back to Iran in 2010, as mentioned in the NY Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18, 2012; 35) Any and all information “leaked” or otherwise provided to the media about shared intelligence between the United States and Israel, as mentioned in the NY Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by James Ri sen on Sunday, March 18, 2012; 36) Any and all information “leaked” or otherwise provided to the media about intercepted communications of Iranian officials discussing their nuclear program, as mentioned in the NY Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18, 2012; 37) Any and all information “leaked” or otherwise provided to the media about Operation Internal Lock, as mentioned in the NY Times article “U.S. Simulation Forecasts Perils of Strike at Iran” by Mark Mazzetti and Thorn Shanker on Tuesday, March 20, 2012; 38) Any and all information “leaked” or otherwise provided to the media that was previously “classified” information regarding the Islamic Republic of Iran; 39) Any and all information “leaked” or otherwise provided to the media that was previously “classified” in formation regarding the country of Israel; 40) Any and all information “leaked” or otherwise provided to the media that was previously “classified” info rmation regarding Israel’s possible attack or other military strike on th e country of the Islamic Republic of Iran; 41) Any and all information “leaked” or otherwise provided to the media about Israel’s staging grounds in A zerbaijan for a possible attack on Iran or for any other reason; 42) Any and all information “leaked” or otherwise provided to the media about any possible attack or measure uti lized by either the United States or Israel to prevent Iran from obtaining the capability to build or otherwise obtain a nuclear weapon; 43) Any and all information “leaked” or otherwise provided to the media5 about the sources of the intelligence that was released to the media; 44) Any and all information linking the Obama Administration to the release of any classified information; 45) Any and all information linking the State Department to the release of any classified information; 46) The names of the persons, employers and job titles of those who “leaked” the above information to the media; 47) Communications with the White H ouse 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; 48) Any and all information that refer or relate to the decision to “leak” the above previously cl assified information; 49) Any and all information that refers or relates to government agencies deciding to investigate who “leaked” the above previously classified information. (Compl. ¶ 4 (some internal quotation marks omitte d).) “Plaintiff requested a fee waiver and expedited processing in accordance with the pro cedures set forth under the regulations of each agency.” ( Id. ¶ 5.)

Defendants denied Freedom Watch’s FOIA re quests. The CIA responded in writing on April 12, 2012, and denied plaintiff’s request fo r expedited processing; it wrote again on April 30, 2012, stating that it could neit her confirm nor deny the existen ce or nonexistence of records responsive to plaintiff’s request. ( See Defs. Mot., Ex. A (“Giuffrida Decl.”) ¶¶ 6–7; see also Giuffrida Decl., Att. 2 (C IA’s April 12, 2012 response); id. , Att. 3 (CIA’s April 30, 2012 response).) The CIA advised Freedom Watch of its right to an admini strative appeal if it responded “within 45 days.” ( Id. ) Freedom Watch did not appeal the CIA’s decision and the time for appeal has passed. ( See Giuffrida Decl. ¶ 8.) The NSA responded in writing on April 13, 201 2, and denied plaintiff’s request for documents, stating that the existence or non-exis tence of the materials plaintiff requested is6 classified and exempt from disclosure. ( See Defs. Mot., Ex. B (“Phillips Decl.”) ¶¶ 4–5; see also Phillips Decl., Att. 2 (NSA’s response).) The NSA advised Freedom Watch that it had 60 days to appeal. ( Id. at 2.) Freedom Watch did not appeal th e NSA’s decision and the time for appeal has passed. ( See Phillips Decl. ¶ 7.) The DoD responded in writing on April 19, 2012, stating that the document request was not a proper FOIA request because it did not reasonably describe the records sought. ( See Defs. Mot., Ex. C (“Kammer Decl.”) ¶¶ 3–4; see also Kammer Decl., Att. 2 (DoD’s response).) The

DoD advised Freedom Watch that it had 60 days to appeal. ( Id. at 1–2.) Freedom Watch did not appeal the DoD’s decision and the time for appeal has passed. (Kammer Decl. ¶ 4.) Finally, State responded in writing on Apr il 23, 2012, and advised Freedom Watch that it could not process the request because Freedom Wa tch failed to describe the records sought in a way that someone familiar with State records and programs could locate them. ( See Defs. Mot., Ex. D (“Walter Decl.”) ¶ 3; see also Walter Decl., Att. 2 (State’s response). 1 ) State instructed Freedom Watch to “narrow the scope of [its] request.” ( Id. at 2.) State also stated that, if Freedom Watch “wish[ed] to pursue this request, [it might] ask for expedited treatment” if or when it sent State “a new request, and suppl[ied ] the additional information necessary to make [its] request valid.” ( Id. at 3.)

1 Plaintiff alleges that State “neither responded nor claimed any exemptions to [its] FOIA request.” (Plaintiff’s Partial Motion for Summa ry Judgment Against Defendant Department of State, July 20, 2012 [Dkt. No. 4] at 1; see also Plaintiff’s Reply in Support of Partial Summary Judgment Against Defendant Department of State, Aug. 24, 2012 [Dkt. No. 8] at 1 (“Plaintiff did not, and has not received any correspondence from Defendant Department of State and has filed an affidavit to that effect.”).) In response, defendants have produced evidence to show that State’s response to Freedom Watch’s FO IA request was properly mailed. ( See Walter Decl. ¶ 3.) However, because the Court will grant defendant s’ motion to dismiss with regard to State ( see Section II, supra ), the Court need not address the issue and will deny plaintiff’s motion for partial summary judgment as moot.7 Freedom Watch sued defendants on May 2, 2012, and defendants have have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

ANALYSIS

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES A FOIA action is subject to dismissal for “f ailure to state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6), when a pl aintiff has failed to exhaust its administrative

remedies. Hidalgo v. FBI , 344 F.3d 1256, 1258, 1260 (D.C. Cir. 2003). The FOIA “statutory scheme ‘requires each requestor to exhaust administrative remedies,’” id. at 1259 (quoting Sinito v. U.S. Dep’t of Justice , 176 F.3d 512, 516 (D.C. Cir. 1999)), and “‘[c]ourts have consistently confirmed that the FOIA requires exhaustion of th is appeal process before an individual may

seek relief in the courts.’” Id. (quoting Oglesby v. U.S. Dep’t of the Army , 920 F.2d 57, 61–62 (D.C. Cir. 1990) (collecting cases)); see 5 U.S.C. § 552(a)(6). In their responses to Freedom Watch’s FOIA requests, the CIA, the NSA, and the DoD informed Freedom Watch of its right to appeal and the process by which such appeals could be pursued. ( See Giuffrida Decl., Att. 3 at 1 (CIA’s Apr il 30, 2012 response); Phillips Decl., Att. 2 at 2 (NSA’s response); Kammer Decl., Att. 2 at 1 –2 (DoD’s response).) The declarations from the CIA, the NSA, and the DoD confirm that those agencies did not receive appeals ( see Giuffrida Decl. ¶ 8; Phillips Decl. ¶ 7; Kammer Decl. ¶ 4.), and, more importantly, Freedom Watch does not deny that it did not seek appeals of their decisions. (Pl. Opp’n at 7–9.) Rather, Freedom Watch argues only that “[a] plaintiff need not ‘exhaust administrative remedies that would be futile’ to exhaust.” ( Id. at 7 (quoting Singh v. Ashcroft , 362 F.3d 1164, 1160 (9th Cir. 2004).) Even assuming, however, that the futility ex ception to the exhaustion requirement that8 applies in immigration cases such as Singh has applicability in the FOIA context, 2 Freedom Watch has failed to demonstrate the futility of appealing the CIA’s, the NSA’s, and the DoD’s decisions. The futility exception applies only if “following the administrative remedy would be

futile because of certainty of an adverse decision .” Randolph-Sheppard Vendors of Am. v. Weinberger , 795 F.2d 90, 105 (D.C. Cir. 1986) (internal quotation marks and citation omitted).

Freedom Watch has fallen far shor t of this demanding standard. It is simply not sufficient to argue that “[i]t was apparent from the systematic and summarily [ sic ] denial of [p]laintiff’s FO IA requests that [d]efendants were unwilling to disclose even a portion of the documents and other informati on that [p]laintiff had requested.” (Pl. Opp’n at 7.) Moreover, the CIA’s, the NSA’s, a nd the DoD’s responses ar e anything but summary denials. Each agency’s response sets forth in significant detail the re asons for the agency’s particular action. The CIA stated that it ha d “completed a thorough review of [Freedom Watch’s] request and [had] determined in acco rdance with section 3.6(a) of Executive Order 13526[ that] the CIA can neither confirm nor deny the existence or nonexistence of” responsive

2 Freedom Watch has cited no caselaw establis hing or addressing a futility exception to the exhaustion requirement in FOIA cases. More over, binding Circuit precedent could not be clearer: exhaustion of admi nistrative remedies “is a mandatory prerequisite to a lawsuit under FOIA.” Wilbur v. CIA , 355 F.3d 675, 676 (D.C. Cir. 2004) (emphasis added, internal quotation marks and citation omitted). But see Armstrong v. Bush , 807 F. Supp. 816, 819 (D.D.C. 1992) (“Defendants also contend that th e [p]laintiffs have not exhauste d their administrative remedies under FOIA. But it is well established that admini strative exhaustion is not required where it would be ‘futile because of certainty of an adverse decision.’” (quoting James v. U.S. Dep’t of Health & Human Servs. , 824 F.2d 1132, 1138 (D.C. Cir. 1987))). Even to the extent that Armstrong should be followed, however, it is of little help to plaintiffs here. In Armstrong , the Court concluded that exhaustion would be futile because defendants had consistently argued that the kinds of records sought were not subject to FOIA. Id. Here, by contrast, as described below defendants responded to Freedom Watch’s FOIA re quests with detailed explanations of why, pursuant to agency determinations and in light of the nature of Freedom Watch’s requests, they were denying them. Defendants di d not assert the kind of categorical bar to disclosure that caused the Court in Armstrong to conclude that exha ustion would be futile. Id.9 records because “[t]he f act of the[ir] existence or nonexisten ce . . . is currently and properly classified.” (Giuffrida Decl., A tt. 3 at 1.) The CIA therefore denied Freedom Watch’s request “pursuant to FOIA exempti ons (b)(1) and (b)(3).” ( Id. ) The NSA’s response was similar and no less detailed. ( See Phillips Decl., Att. 2 at 1–2.) The DoD, on the other hand, stated that it was denying Freedom Watch’s request because it did “not reasonabl y describe the records that” Freedom Watch sought, such that it was “not a pr oper FOIA request.” (Kammer Decl., Att. 2 at 1.) The DoD, noting that “[t]he FOIA does not require agencies to conduct research in order to respond to requests,” stated in particular that Freedom Watch had “attached multiple newspaper articles for us to try to determine records [Fr eedom Watch sought] for several of the 49 items in [Freedom Watch’s] request,” and that the DoD did “not consider that a reasonable description of records.” ( Id. (“The other items in your request are not reasonably described as well. . . . Descriptive information may be provided in these ways . . . .”).) Such responses give no grounds for arguing that exhaustion of administrative reme dies would be futile. Accordingly, the Court will grant defendants’ motion to dismiss the CIA, the NSA, and the DoD for failure to exhaust

administrative remedies. 3 II. PROPER FOIA REQUEST “Two requirements must be met in order for a FOIA request to be proper: (1) the request must ‘reasonably’ describe the records sought, a nd (2) it must be ‘made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.’” Lowe v.

3 In their motion to dismiss, defendants argue fail ure to exhaust administrative remedies as to the CIA and the NSA only. ( See Defs. Mot. at 7; Defs. Reply at 2 n.1.) However, the Court takes note of the fact that, as described above, the DoD also informed Freedom Watch of its right to an appeal—a right which Freedom Watch did not choos e to exercise. Regardless, the Court would also grant defendants’ motion to dismiss as to the DoD for the reasons set forth in Section II, infra

.10 DEA , No. 06-cv-1133, 2007 WL 2104309, at *4 (D.D.C . July 22, 2007) (quoting (5 U.S.C. § 552(a)(3)(A)). “Omitting one of the two threshold requirements for a proper FOIA request . . .

warrants dismissal.” Id. at *5 (citing Kessler v. United States , 899 F. Supp. 644, 645 (D.D.C. 1995)). With regard to the first requirement, record s are reasonably describe d “if a professional employee of the agency familiar with the subject matter can locate the records with a ‘reasonable

amount of effort.’” Armstrong v. Bush , 139 F.R.D. 547, 553 (D.D.C. 1991) (quoting Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce , 632 F. Supp. 1272, 1278 (D.D.C. 1986), aff’d , 907 F.2d 203 (D.C. Cir. 1990)); accord Keys v. Dep’t of Homeland Sec. , No. 08-cv0726, 2009 WL 614755, at *5 (D.D.C. March 10, 2009). “An agency need not honor a [FOIA] request that requires ‘an unreas onably burdensome search.’” Am. Fed’n of Gov’t Employees,

Local 2782 , 907 F.2d at 209 (quoting Goland v. CIA , 607 F.2d 339, 353 (D.C. Cir. 1978)). “The

rationale for this rule is that FOIA was not inte nded to reduce government agencies to full-time investigators on behalf of requestors.” Assassination Archives & Rese arch Ctr., Inc. v. CIA , 720 F. Supp. 217, 219 (D.D.C. 1989).

The Court concludes that Freedom Watch’s complaint demonstrates on its face that its FOIA requests are virtually incomprehensible an d are “so broad as to impose an unreasonable burden upon the agency.” Am. Fed’n of Gov’t Employees, Local 2782 , 907 F.2d at 209. “They would require the agency to locate, review, redact , and arrange for inspecti on a vast quantity of

material.” Id. This might include anything “relating to” the individual nations referenced in the

two New York Times articles and the Foreign Policy article, which include Iran, Israel, Iraq, North Korea, Russia, Azerbaijan, and others . Freedom Watch’s demand for “any and all information ‘leaked’ or otherwise provided about a draft version of the 2010 National11 Intelligence Estimate” (Compl. ¶ 4) is extraordinarily broad standing alone; that it is only one of 49 similarly vague inquiries confirms the unrea sonable and burdensome nature of Freedom Watch’s FOIA requests. “[I]t is the requester’s responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.” Assassination

Archives & Research Ctr. , 720 F. Supp. at 219; see Marks v. U.S. Dep’t of Justice , 578 F.2d 261, 263 (9th Cir. 1978) (courts have “held that broa d, sweeping requests lacking specificity are not permissible” (collecting cases)); accord Dale v. IRS , 238 F. Supp. 2d 99, 104 (D.D.C. 2002); Keys , 2009 WL 614755, at *5. Freedom Watch has not fulfilled its responsibility here. Moreover, the Court agrees with defendant s that Freedom Watch’s request, with its references in 42 items to alleged “leaks”—a term that Freedom Watch does not define—would impermissibly require defendants “to undertake an investigation and then draw legal conclusions based on the investigation’s findings before they would be in a position to determine whether certain records relate to unauthorized [and possibl y unlawful] ‘leaks.’” (Defs. Mot. at 11 n.3.) In opposing defendants’ motion, for example, Freedom Watch states that “[i]f no crime has been committed and previously classified information has now been declassified for release, then [p]laintiff’s FOIA requests should be responded to with the now non-exempt documentation and information.” (Pl. Opp’n at 2.) It is thus evident that Freedom Watc h intends for federal employees to make complicated determinations about whether crimes have been committed. While “[t]he central purpose of FOIA is to ‘open[] up the workings of government to public scrutiny,’” Stern v. FBI , 737 F.2d 84, 88 (D.C. Cir. 1984) (sec ond alteration in the original) (quoting McGehee v. CIA , 697 F.2d 1095, 1108 (D.C. Cir. 1983)), it not intended to force a federal agency to undertake gran d-jury style investigations. Assassination Archives & Research12 Ctr., Inc. , 720 F. Supp. at 219. Freedom Watch’s FOIA requests are iden tical, and plaintiff cannot overcome the requests’ deficiencies by merely arguing that they are “specifi c enough.” (Pl. Opp’n at 12.) Accordingly, the Court’s conclusion that Fr eedom Watch’s requests do not “reasonably describe[]” the records that it seeks, 5 U.S.C. § 552(a)(3)(A)(i), justifie s the dismissal of State and provides an independent basis for dism issing the CIA, the NSA, and the DoD.

CONCLUSION

Freedom Watch has admitted that it remains “willing to work with [d]efendants in order to further refine the portion of the FOIA request that [d]efendants have not been able to figure out.” (Pl. Opp’n at 13.) Clearl y, this Court is not the proper venue for that process. Plaintiff’s recourse remains with the agencies. The Cour t will grant defendants’ motion to dismiss. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: October 5, 2012