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United States District Court for the District of Columbia Case 1:14-cv-00019-CRC Document 58 Filed 03/17/16 Page 1 of 18 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN NOAH SHAPIRO, Plaintiff, v. Case No. 14-cv-00019 (CRC) CENTRAL INTELLIGENCE AGENCY, et al., Defendants. MEMORANDUM OPINION Plaintiff Ryan Shapiro brought this action against four federal agencies pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. He alleges that each defendant has violated FOIA by inadequately processing his request for all documents in their possession that mention the famed South African activist and political leader Nelson Mandela. The Federal Bureau of Investigation (“FBI”) and the Defense Intelligence Agency (“DIA”) are in the process of reviewing and producing documents in response to Shapiro’s request. The Central Intelligence Agency (“CIA”), however, has moved to dismiss Shapiro’s complaint, arguing that he has not exhausted his administrative remedies because his FOIA request does not “reasonably describe” the records he seeks. And the National Security Agency (“NSA”) has moved for summary judgment, maintaining that its refusal even to confirm or deny the existence of what Shapiro has requested is warranted under two statutory disclosure exemptions. In his own cross- motion for summary judgment, Shapiro claims that the information the NSA wishes to keep secret has already been officially acknowledged; he also contends that the agency’s blanket nonresponse is premised on an unduly narrow interpretation of his FOIA request. Case 1:14-cv-00019-CRC Document 58 Filed 03/17/16 Page 2 of 18 For the reasons explained below, the Court will deny the CIA’s motion to dismiss, grant in part the NSA’s motion for summary judgment, and deny Shapiro’s cross-motion for summary judgment. I. Background Ryan Shapiro is a doctoral candidate at the Massachusetts Institute of Technology and a “historian of the political functioning of national security and the policing of dissent.” Pl.’s First Am. Compl. (“Compl.”) ¶ 2. On December 11, 2013, Shapiro submitted FOIA requests to the CIA, NSA, DIA, and FBI, “requesting copies of records mentioning or referring to” Nelson Mandela, the famed anti-apartheid activist and former President of South Africa. Id. ¶ 21. His requests to the CIA and the NSA were worded identically: “I request disclosure of any and all records that were prepared, received, transmitted, collected and/or maintained by the [agencies] mentioning the deceased individual Rolihlahla Mandela (aka Nelson Mandela, aka Madiba, aka Tata).” Compl. Ex. 3, at 1; id. Ex. 4, at 1. Both agencies refused to comply with Shapiro’s request, and the present motions stem from the parties’ disagreement about the adequacy of these responses. Shapiro requested that the CIA search “all electronic and paper/manual indices, filing systems, and locations,” including “all of its directorates” and at least thirty enumerated “filing systems, indices, and locations.” Id. Ex. 3, at 4–5. This request—for which Shapiro sought expedited treatment—also encompassed emails and publicly available records. Id. at 2, 6. In a letter dated March 10, 2014, transmitted after Shapiro filed his initial Complaint, the CIA notified him that it could not process his FOIA request in its current form because to do so “would require the Agency to perform an unreasonably burdensome search.” Def. CIA’s Mot. Dismiss Ex. B, at 1. The CIA further explained that “FOIA requires requesters to ‘reasonably 2 Case 1:14-cv-00019-CRC Document 58 Filed 03/17/16 Page 3 of 18 describe’ the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort.” Id. The agency closed its letter by inviting Shapiro to narrow the scope of his “[e]xtremely broad” and “vague” request. Id. Instead, he amended his Complaint, claiming that the CIA had violated FOIA by “improperly withholding records, failing to conduct an adequate search, and . refusing to process the request at all.” Compl. ¶ 59. The CIA has moved to dismiss Shapiro’s First Amended Complaint, arguing that he failed to exhaust his administrative remedies because his FOIA request did not “reasonably describe[]” the records sought, as the statute requires. 5 U.S.C. § 552(a)(3)(A). The NSA responded to Shapiro’s FOIA request in a letter dated December 31, 2013. It informed him that “[t]o the extent that you are seeking informational documents regarding Nelson Mandela,” the agency had previously released one Cryptolog document1 from 1996 that could be found at a particular web address. Def. NSA’s Mot. Summ. J. Ex. B, at 1. Yet “[t]o the extent that you are seeking intelligence information on Nelson Mandela,” the NSA invoked a so- called Glomar response, meaning that it refused even to confirm or deny the “existence or non- existence” of such records. Id. (emphasis added). According to the NSA, this fact falls within FOIA Exemptions One and Three, because it has been properly classified pursuant to an executive order and is protected from disclosure by three federal statutes. Shapiro administratively appealed the NSA’s denial of his request, but filed his Complaint before the 1 Cryptolog, one of the NSA’s “longest-lived technical publications,” was “designed for the interchange of ideas on technical subjects in what was originally referred to as the Operations side of NSA.” The National Security Agency’s Release of All Issues of Its Technical Periodical, “Cryptolog”, National Security Agency, https://www.nsa.gov/public_info/_files/cryptologs/faqs_ for_cryptolog_release.pdf (last visited Mar. 15, 2016). 3 Case 1:14-cv-00019-CRC Document 58 Filed 03/17/16 Page 4 of 18 agency could resolve his appeal. He alleges that the NSA has “violated FOIA by improperly withholding records.” Compl. ¶ 59. The NSA has moved for summary judgment, expanding on its contention that FOIA Exemptions One and Three justify the agency’s Glomar response. Shapiro has cross-moved for summary judgment, contending that the NSA’s Glomar response was both incomplete and improper, because the NSA interpreted his request too narrowly and has already officially acknowledged its interest in gathering overseas intelligence on Nelson Mandela. II. Legal Standards Congress created FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). Despite this broad mandate, FOIA contains a set of exceptions to the general obligation to provide government records to the public. 5 U.S.C. § 552(b). These exemptions are in place “to balance the public’s interest in governmental transparency against the ‘legitimate governmental and private interests [that] could be harmed by release of certain types of information.’” United Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear Reg. Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)). FOIA “mandates a strong presumption in favor of disclosure,” and its “statutory exemptions, which are exclusive, are to be ‘narrowly construed.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Rose, 425 U.S. at 361). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant’s evidence and 4 Case 1:14-cv-00019-CRC Document 58 Filed 03/17/16 Page 5 of 18 draws all reasonable inferences in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is proper if the moving party establishes that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The government bears the burden to establish that the claimed FOIA exemptions apply to each document for which they are invoked. ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (“ACLU I”). The government may satisfy this burden through declarations that describe the justifications for its withholdings in “specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption[.]” Id. The agency’s affidavits will not warrant summary judgment if the plaintiff puts forth contrary evidence or demonstrates the agency’s bad faith. Id. When evaluating a motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Fed. R. Civ. P. 12(b)(6); Elec. Privacy Info. Ctr. v. NSA, 795 F. Supp. 2d 85, 90 (D.D.C. 2011). To survive a Rule 12(b)(6) motion, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a complaint’s factual allegations warrant a reasonable inference that the defendant is liable for the alleged misconduct. Id. III. Analysis A. The CIA’s Motion to Dismiss In its initial letter refusing to process Shapiro’s FOIA request, the CIA explained that a search for all documents mentioning Nelson Mandela would be “unreasonably burdensome” and that Shapiro had not exhausted his administrative remedies because his request did not “reasonably describe” the records sought.
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