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 the Central Intelligence Agency (“CIA”), the 

National Security Agency (“NSA”), the Department of Defense (“DoD”), and the Department of 

State (“State”), alleging that defendants 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 [Dkt. 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 identical 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. “Specifically, plaintiff sought: 

. . . all correspondence, memoranda, documents, reports, records, statements, 
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audits, lists of names, applications, diskettes, letters, expense 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, drawings, 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 Perils of Strike at Iran” by Mark 

Mazzetti and Thorn Shanker on Tuesday, March 20, 2012; 

3) Any and all information that refers 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 otherwise 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, refueling aircraft, and precision 

missiles doing damage to the Iranian nuclear program; 

11) Any and all information “leaked” about the results of testing internal 

military communications; 

12) Any and all information “leaked” about American officials saying that 

they believe Israel would 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 manage 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 rationale for attacking the United States; 

15) Any and all information “leaked” about military specialists who have 

assessed the potential ramification 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 heat 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 by 
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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 decided to pursue a nuclear weapon; 

21) Any and all information “leaked” about American intelligence 

officials expressing confidence in the spy agencies’ assertions 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 Islamic republic of Iran; 

24) Any and all statements made by the Islamic Republic of Iran saying 

that its nuclear program is for peaceful civilian purposes; 

25) Any and all information “leaked” about American intelligence 

agencies and the International Atomic Energy Agency picking up 

evidence in recent years that some Iranian 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 “leaked” 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 “leaked” about the United States placing 

clandestine ground sensors which can detect electromagnetic signals or 

radioactive emissions that could be linked to nuclear activity near suspect 

Iranian facilities; 

33) Any and all information “leaked” or otherwise provided to the media 
4 

about eavesdropped or otherwise intercepted telephone conversations 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 scientist 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 Risen 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” information regarding the country of 

Israel; 

40) Any and all information “leaked” or otherwise provided to the media 

that was previously “classified” information regarding Israel’s possible 

attack or other military strike on the 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 Azerbaijan 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 utilized 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 media 
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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 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; 

48) Any and all information that refer or relate to the decision to “leak” 

the above previously classified 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 omitted).) “Plaintiff requested a fee waiver and 

expedited processing in accordance with the procedures set forth under the regulations of each 

agency.” (Id. ¶ 5.) 

 Defendants denied Freedom Watch’s FOIA requests. The CIA responded in writing on 

April 12, 2012, and denied plaintiff’s request for expedited processing; it wrote again on April 

30, 2012, stating that it could neither confirm nor deny the existence or nonexistence of records 

responsive to plaintiff’s request. (See Defs. Mot., Ex. A (“Giuffrida Decl.”) ¶¶ 6–7; see also 

Giuffrida Decl., Att. 2 (CIA’s April 12, 2012 response); id., Att. 3 (CIA’s April 30, 2012 

response).) The CIA advised Freedom Watch of its right to an administrative 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, 2012, and denied plaintiff’s request for 

documents, stating that the existence or non-existence of the materials plaintiff requested is 
6 

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 the 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 April 23, 2012, and advised Freedom Watch that it 

could not process the request because Freedom Watch 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 Summary 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 FOIA request was properly mailed. (See Walter Decl. ¶ 3.) 

However, because the Court will grant defendants’ 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 “failure to state a claim upon which relief can 

be granted,” Fed. R. Civ. P. 12(b)(6), when a plaintiff 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 this 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 April 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 exception to the exhaustion requirement that 
8 

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 short 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 FOIA requests that [d]efendants were unwilling to disclose 

even a portion of the documents and other information that [p]laintiff had requested.” (Pl. Opp’n 

at 7.) Moreover, the CIA’s, the NSA’s, and the DoD’s responses are anything but summary 

denials. Each agency’s response sets forth in significant detail the reasons for the agency’s 

particular action. The CIA stated that it had “completed a thorough review of [Freedom 

Watch’s] request and [had] determined in accordance 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 establishing or addressing a futility exception to the 

exhaustion requirement in FOIA cases. Moreover, binding Circuit precedent could not be 

clearer: exhaustion of administrative 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 the [p]laintiffs have not exhausted their administrative remedies 

under FOIA. But it is well established that administrative 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 requests 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 did not assert the kind of categorical bar to disclosure that 

caused the Court in Armstrong to conclude that exhaustion would be futile. Id.
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records because “[t]he fact of the[ir] existence or nonexistence . . . is currently and properly 

classified.” (Giuffrida Decl., Att. 3 at 1.) The CIA therefore denied Freedom Watch’s request 

“pursuant to FOIA exemptions (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 reasonably describe the records that” 

Freedom Watch sought, such that it was “not a proper 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 [Freedom 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 remedies 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, and (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 failure 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 choose 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, records are reasonably described “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 unreasonably 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 intended to reduce government agencies to full-time 

investigators on behalf of requestors.” Assassination Archives & Research 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 and 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 inspection 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 National 
11 

Intelligence Estimate” (Compl. ¶ 4) is extraordinarily broad standing alone; that it is only one of 

49 similarly vague inquiries confirms the unreasonable 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 broad, 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 defendants 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 possibly 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 Watch 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) (second 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 grand-jury style investigations. Assassination Archives & Research 
12 

Ctr., Inc., 720 F. Supp. at 219. 

 Freedom Watch’s FOIA requests are identical, and plaintiff cannot overcome the 

requests’ deficiencies by merely arguing that they are “specific enough.” (Pl. Opp’n at 12.) 

Accordingly, the Court’s conclusion that Freedom Watch’s requests do not “reasonably 

describe[]” the records that it seeks, 5 U.S.C. § 552(a)(3)(A)(i), justifies the dismissal of State 

and provides an independent basis for dismissing 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.) Clearly, this Court is not the proper venue for that process. Plaintiff’s 

recourse remains with the agencies. The Court 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