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Nat’l Sec. Counselors v. CIA, No. 12-284 (BAH), 2013 WL 1141768 (D.D.C. Mar. 20, 2013) (Howell, J.)
March 20th, 2013 Posted by

Re: Various FOIA and Mandatory Declassification Review requests submitted to defendant

Disposition: Granting in part and deny in party defendant’s partial motion to dismiss

  • Litigation Consideration/Standing:  The court finds “plaintiffs have failed to establish that they have Article III standing to bring their policy-or-practice claims.”  The case law “establish[es] that plaintiffs do not have standing to pursue policy-or-practice claims if they cannot demonstrate that they have any outstanding FOIA requests (other than the requests challenged in the litigation) that are likely to implicate that alleged policies and lead to future injury.”  “[T]he plaintiffs have merely alleged that they ‘stand to continue to be harmed’ because ‘they regularly file FOIA requests with CIA and will continue to do so in the future.’”  The court concludes, “the generalized statements offered by the plaintiffs in the instant case are not sufficiently concrete for the Court to conclude that the plaintiffs are likely to be subjected to these alleged policies or practices in the future.”
  • Exhaustion of Administrative Remedies:  First, “the Court observes that the narrow question presented is whether an agency’s response to a FOIA request which lacks a volume estimate requires actual exhaustion or instead permits constructive exhaustion.”  The plaintiffs argue that the denial letters were “‘legally insufficient’” because they “did not contain the volume estimate” as set forth in 5 U.S.C. § 552(a)(6)(F) and therefore “did not trigger the requirement to file an administrative appeal.”  The plaintiff argues that it “constructively exhausted its administrative remedies because ‘twenty working days [had] elapsed without a substantive determination by CIA which [met] the volume estimate requirement of FOIA.”‘  The court reviews the statutory language and notes that the constructive exhaustion provision applies “if the agency fails to comply with the applicable time limit provisions.”  “Construction exhaustion in the FOIA is a privilege granted only to individuals whose requests for records have essentially been ignored by the agency, and it is a privilege reserved for a situation in which agency neglect has resulted in a ‘fail[ure] to comply with the applicable time limit provisions of’” the statute.  Therefore, the fact that the CIA did not provide an estimate of the volume of the material withheld does not permit the plaintiff “to invoke constructive exhaustion and forego an administrative appeal before filing a lawsuit.”  As a result, the plaintiff failed to exhaust its administrative remedies for certain FOIA requests at issue in the case.
  • Procedural Requirements:  The court concludes that the CIA’s interpretation of a specific request was unreasonable.  The request “sought ‘thirty-two specified documents currently published [on the CIA's web page]‘ and asked “that ‘[r]ecords which are currently published [on that page] in redacted form should be reviewed for full release under the FOIA.’”  The CIA argues it was reasonable to interpret the request as one for copies of the previously released documents.  The court disagrees and “cannot conclude that the CIA’s interpretation of [the] request was reasonable as a matter of law.”  “It was unreasonable for the CIA to ignore such clear instructions conveying the intended scope of a FOIA request,” when the request clearly stated that redacted versions should be reviewed for a full release.

    Next is the issue of the plaintiff’s request for duplicative records.  The court concludes, “the agency cannot flatly refuse to process the request on the theory that ‘the FOIA does not require an agency to indulge a requester who repeatedly seeks the same records.’”  The court explains, “absent some contention that the production of redundant records to the same requester would run afoul of the FOIA by imposing an undue burden upon the CIA or requiring the CIA to create records,” the request for duplicative records must move forward.  “The Court finds nothing in the FOIA that would foreclose an individual from seeking the production of records already disclosed to him, particularly in a situation like the instant case where an individual seeks redundant documents in order to obtain a new piece of information.”

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