On April 24, 2015, the United States Court of Appeals for the District of Columbia Circuit issued an opinion upholding denials of Freedom of Information Act (FOIA) records requests by the Central Intelligence Agency (CIA), National Security Agency (NSA), and Department of Defense's (DoD), affirming the adequacy of the State Department's record search methods, and remanding to the District Court for the State Department to conduct searches of Hillary Clinton's private email while she served as Secretary of State.
As background, on June 1, 2012, the New York Times published an article by David Sanger, an investigative reporter, describing a classified government initiative to "undermine the Iranian nuclear program" through "increasingly sophisticated attacks on the computer systems that run Iran's main nuclear enrichment facilities." Later that day, Freedom Watch, a self-proclaimed "public interest group acting on behalf of the public at large," filed requests pursuant to FOIA seeking records relating to the article from the CIA, NSA, DoD and the State Department. Freedom Watch sought various records including "any and all information that refers or relates in any way to information released to [Sanger] and/or made available to him."
The CIA, NSA and DoD denied the request on "national security" grounds, issuing a Glomar response (i.e. that the agencies could "neither confirm nor deny the existence or non-existence" of responsive documents). The CIA and NSA also advised Freedom Watch of its right to administratively appeal. The State Department informed Freedom Watch that it was processing the request.
After FOIA's 20-day deadline expired, Freedom Watch filed suit in the United States District Court for the District of Columbia to compel the agencies to search for and produce responsive records. The District Court granted judgment on the pleadings for the CIA and NSA because Freedom Watch failed to exhaust its administrative remedies and granted summary judgment for DoD based upon FOIA's national security exemption. The District Court also granted judgment on the pleadings for the State Department as to all of the requests except for information released to Sanger.
The State Department searched for and discovered 79 responsive documents, releasing 58 in full, 20 in part, and withholding one. In the midst of the search, the State Department moved for summary judgment, and after the conclusion of the search, responded to Freedom Watch's opposition brief, describing its search efforts. Freedom watch moved to depose a State Department records custodian, arguing that the search was part of a pattern of "delay, obfuscation, and outright obstruction of justice." The District Court denied Freedom Watch's motion to depose and granted the State Department's motion for summary judgment, concluding that the State Department "met its burden by conducting searches that were reasonably calculated to find responsive records."
On appeal, Freedom Watch challenged the NSA, CIA, and DoD's Glomar responses as well as the State Department's search. Prior to oral argument, Freedom Watch moved to supplement the record with news articles regarding the revelation that former Secretary of State Hillary Clinton maintained a private email account on a private server while leading the State Department. Freedom Watch contended that the State Department failed to produce all responsive records due to the discovery of Clinton's private email, and sought to expand the search for documents on remand. The State Department proposed a process for the search on remand that it claimed would make the request to supplement unnecessary. Based upon the government's representations, the DC Circuit denied the motion to supplement and remanded to the District Court to oversee the search of Clinton's emails.
Regarding the other issues on appeal, the DC Circuit held that the district court properly: (1) granted judgment on the pleadings for the NSA and CIA because Freedom Watch failed to internally appeal the denials and thus failed to exhaust its administrative remedies before seeking judicial review; (2) granted summary judgment for DoD because the DoD supported its Glomar response with an uncontroverted declaration explaining its reasons for nondisclosure with reasonably specific detail, including potential damage to national security; (3) granted summary judgment to the State Department because the agency established the adequacy of its search efforts; and (4) denied Freedom Watch's request for additional discovery because Freedom Watch offered no evidence to support its allegation that the State Department's search was conducted in bad faith.
Freedom Watch, Inc. v. National Security Agency, et al. No. 14-5174 (D.C. Cir. April 24, 2015)