                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

FREEDOM WATCH, INC.,

                      Plaintiff,

                      v.                          Case No. 1:12-cv-01088 (CRC)

NATIONAL SECURITY AGENCY,
CENTRAL INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE, and
DEPARTMENT OF STATE,

                      Defendants.

                                   MEMORANDUM OPINION

       Freedom Watch, Inc., challenged the responses of four federal agencies to its Freedom of

Information Act (“FOIA”) requests regarding a 2012 New York Times article discussing a U.S.

cyber-attack on Iran. After the Court ruled in favor of three of the agencies on the pleadings, and

dismissed claims against the State Department with respect to all but one category of requested

records, the State Department conducted a rolling search for records responsive to Freedom

Watch’s lone remaining request. Because the Department’s affidavits establish that it conducted an

adequate search, and Freedom Watch has not provided any evidence to the contrary, the Court will

grant the Department’s motion for summary judgment.

       I.      Background

       The genesis of this dispute is a June 1, 2012 New York Times article by David Sanger

describing the Bush and Obama Administrations’ classified program to undermine Iran’s nuclear

program by releasing a computer “worm” within that country’s main nuclear enrichment plant.

Compl. Ex. 1. Sanger reportedly based his account of the initiative—dubbed “Olympic Games”—

on interviews with “current and former American, European and Israeli officials involved in the

program, as well as a range of outside experts.” Id. Freedom Watch believed that classified
information about the program had been leaked by “Obama Administration sources on the

President’s behalf . . . to further [his] 2012 re-election campaign[,]” notwithstanding the multiple

other potential sources for the information contained in the article. Id. Expressing alarm that these

suspected leaks had jeopardized national security and hastened a confrontation between Iran and

Israel, Freedom Watch submitted requests under the Freedom of Information Act, 5 U.S.C. § 552,

to the Department of Defense (“DOD”), the Central Intelligence Agency (“CIA”), the National

Security Agency (“NSA”), and the State Department. The requests sought: (1) information relating

to the article, including classified information that was allegedly leaked to Sanger; (2) records

relating to information released to Sanger; (3) information on whomever provided information to

Sanger; (4) communications with the White House regarding the article; (5) information related to

“the decision to ‘leak’”; and (6) information on any government investigations into the article. Id. ¶

4.

       After waiting the required 20 days, see 5 U.S.C. § 552(a)(6)(A), Freedom Watch filed suit to

compel the four agencies to search for and produce responsive records. The NSA and the CIA

moved for judgment on the pleadings and the DOD moved for summary judgment, each of which

the Court granted, resolving all claims in favor of those agencies. Order (Dec. 13, 2012). The

Court also granted the State Department’s motion for judgment on the pleadings with respect to

requests 1 and 3–6, finding the requests to be overly speculative, but denied it as to Freedom

Watch’s second request, regarding information released to Sanger. Id.

       After the partial dismissal, and while summary judgment briefing was still ongoing, the

State Department conducted several searches for records responsive to Freedom Watch’s second

request. The Department’s searches are detailed in declarations provided by Sheryl L. Walter,

Director of the Department’s Office of Information Programs and Services (“IPS”). According to

Ms. Walter, IPS evaluated Freedom Watch’s request “to determine which offices, overseas posts, or

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records systems within the Department may be reasonably expected to contain the records

requested.” Supplemental Walter Decl. ¶ 1. This selection process was based on “the holdings of

the Department’s records systems, applicable records disposition schedules, and the substantive and

functional mandates of numerous Department offices and Foreign Service posts and missions” as

well as the “nature, scope, and complexity of the request.” Id. ¶ 10. IPS identified three “offices or

records systems with a reasonable possibility of possessing responsive documents”: the Central

Foreign Policy Records, which, as the name suggests, is the central record system at the

Department; the Bureau of Public Affairs, which is charged with managing communications

between the Department and the media; and the Bureau of Near Eastern Affairs, which “advis[es]

the Secretary of State on matters in North Africa and the Middle East.” Id. ¶¶ 12–18.

       With relevant locations for the search determined, Department employees began by

conducting full text searches of the electronic record systems in each department—including

individual electronic records of all employees in the Bureau of Public Affairs and 15 employees in

the Bureau of Near Eastern Affairs’ Iran office—for the terms “David Sanger” and “David E.

Sanger.” Id. ¶¶ 14, 17, 19. The Near Eastern Affairs Bureau’s Iran office also searched physical

records that its employees knew to be excluded from the electronic records system and had a

“reasonable possibility of containing information responsive to this FOIA request.” Id. ¶ 19. These

initial searches identified no responsive documents except in the Bureau of Public Affairs, which

discovered three records, two of which the Department released in full and one it released in part

after redacting material it deemed nonresponsive. Id. ¶¶ 9, 14, 17, 19.

       After receiving Freedom Watch’s opposition to its summary judgment motion, the

Department voluntarily asked the Bureau of Public Affairs to confirm that no other locations should

be searched. In response, the Bureau determined that it had neglected to search its front office,

which performs executive tasks to support the Bureau. Second Supplemental Walter Decl. ¶ 6.

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Due to its discovery of additional potentially responsive records, the Department sought and was

granted a 60-day extension of time to conduct a supplemental search and reply to Freedom Watch’s

opposition brief. Order (June 5, 2013). Employees of the Bureau conducted a search of the front

office’s paper records and searched its electronic records for the term “Sanger,” uncovering 62

responsive documents. These documents revealed that Sanger had interviewed five State

Department employees. Id. ¶¶ 7–9. The Department then searched the records of those five

employees and their respective departments—by manual search of paper records and full-text

search of electronic records for the term “Sanger”—discovering 14 additional documents. Id. ¶¶

10–19. Since the beginning of this suit, the State Department has produced a total of 79 documents

responsive to Freedom Watch’s FOIA request, releasing 58 in full, 20 in part, and withholding one

in full. Id. ¶¶ 3, 48.

        In the midst of the Department’s voluntary supplemental search, Freedom Watch moved to

depose a State Department records custodian concerning the adequacy of the original search, which

Freedom Watch suggested was part of a pattern of “outright obstruction of justice” by the Obama

Administration. Mot. for Discovery at 1. Judge Wilkins denied the motion, finding no evidence of

bad faith on the part of Department, but invited Freedom Watch to renew its request after the

Department had an opportunity to fully explain the adequacy of its search. Minute Order (June 18,

2013). Freedom Watch has declined to renew its motion or to challenge the Department’s

supplemental production.

        II.     Standard of Review

        The Court may grant summary judgment if “the movant shows 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 Court must accept the non-movant’s evidence as true and draw all reasonable

inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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(1986). “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); accord Brayton

v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary

judgment in the FOIA context requires the government to “demonstrate the absence of a genuine

dispute regarding the adequacy of its search for or production of responsive records.” Judicial

Watch, Inc. v. Dep’t of the Navy, 971 F. Supp. 2d 1, 3 (D.D.C. 2013) (citing Nat’l Whistleblower

Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 21–22 (D.D.C. 2012)).

       III.    Analysis

       A. Adequacy of the State Department’s Search

       To meet its FOIA obligations, an agency must show that it “conducted a search reasonably

calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351

(D.C. Cir. 1983). The agency is not required to prove that it discovered every possibly relevant

document, id. at 1485, but simply must demonstrate “a good faith effort[.]” Oglesby v. Dep’t of the

Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The Court will judge the adequacy of an agency’s search

for documents by a standard of reasonableness that “depends, not surprisingly, upon the facts of

each case.” Weisberg, 705 F.2d at 1485.

       The Court may grant summary judgment on the basis of agency affidavits and declarations

alone when they are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926

F.2d 1197, 1200 (D.C. Cir. 1991). The affidavits need not “set forth with meticulous

documentation the details of an epic search for the requested records[.]” Perry v. Block, 684 F.2d

121, 127 (D.C. Cir. 1982). But they must describe “what records were searched, by whom, and

through what processes,” Steinberg v. Dep’t of Justice, 23 F.3d 548, 551–52 (D.C. Cir. 2008)

(citing Weisberg v. Dep’t of Justice, 637 F.2d 365, 371 (D.C. Cir. 1980)), and should “set[] forth

the search terms and the type of search performed and aver[] that all files likely to contain

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responsive materials . . . were searched.” Ogelsby, 920 F.2d at 68. There is a presumption of good

faith accorded to agency submitted affidavits or declarations, “which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of other documents.’” SafeCard Servs.,

926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

       The State Department has demonstrated that it conducted an adequate search for records

responsive to Freedom Watch’s FOIA request. Ms. Walter’s declarations indicate the places that

were searched and explain why the Department determined that those records systems were likely

to contain responsive documents. IPS searched the central record system for the State Department

as a whole, the record systems of the bureau that manages communications with the media, and the

bureau that oversees policy in Iran, the country to which Sanger’s article relates. Supplemental

Walter Decl. ¶¶ 12–13, 14, 18. These are perfectly logical locations to search for potentially

responsive records. Walter’s declarations further explain that the terms “David Sanger” and

“Sanger” were used to search relevant electronic records and that physical files were reviewed by

knowledgeable staff. Id. ¶¶ 14, 17, 19; Second Supplemental Walter Decl. ¶¶ 7–9. Searching by

Sanger’s name was a reasonable method of uncovering documents regarding what information

employees may have given him; indeed, Freedom Watch does not quarrel with the search methods

used. Additionally, when IPS realized it had neglected to search other relevant record systems or

when documents suggested that other individuals might have responsive records, the Department

responded by conducting further searches and providing Freedom Watch additional responsive

records. Second Supplemental Walter Decl. ¶¶ 7–19. Notably, Freedom Watch does not object to

the adequacy of the supplemental searches conducted after it filed its opposition.

       Freedom Watch may overcome the presumption of good faith accorded the State

Department’s declarations by presenting countervailing evidence, see Iturralde v. Comptroller of

the Currency, 315 F.3d 311, 314 (D.C. Cir. 2003), but it has not done so. It offers instead

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speculative, unsupported assertions that do not call into question the adequacy of the State

Department’s search. It posits, for example, that Sanger must have received the information for the

article directly from former Secretary of State Hillary Clinton, and that “someone was undoubtedly

present at the interview and was responsible for taking notes, preparing memoranda, and/or

preparing some sort of record of the Secretary of State’s statements.” Pl.’s Opp. to Mot. for Summ.

J. at 2, 6–8. These allegations, lacking any evidentiary support, are insufficient to contradict the

comprehensive description of the search set forth in the Walter declarations. See SafeCard Servs.,

926 F.2d at 1201 (“Mere speculation that as yet uncovered documents may exist does not

undermine the finding that the agency conducted a reasonable search for them.” (citation omitted)).

Moreover, the Court determines adequacy “not by the fruits of the search, but by the

appropriateness of the methods used to carry out the search.” Iturralde, 315 F.3d at 315.

       Freedom Watch also questions the adequacy of the State Department’s search because the

lion’s share of responsive documents was found only as a result of corrective searches. Pl.’s Opp.

to Mot. For Summ. J. at 3–4. But “it does not matter that an agency’s initial search failed to

uncover certain responsive documents so long as subsequent searches captured them.” Hodge v.

FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (emphasis in original). Unless Freedom Watch “can

identify any additional searches that must be conducted,” id., which it has declined to do, the State

Department has met its burden by conducting searches that were reasonably calculated to find

responsive records, regardless of whether the records were found initially or after subsequent

searches.

       Finally, Freedom Watch argues that because IPS referred one document to another agency

for review and redaction, Walters lacks “the requisite personal knowledge as to” whether the

document was responsive or was appropriately redacted. Pl.’s Opp. to Mot. for Summ. J. at 6–7.

Walter’s supplemental declaration explains that the document in question originated with the

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National Security Staff (“NSS”), now called the National Security Council, which requested the

redaction of nonresponsive sections. Second Supplemental Walter Decl. ¶¶ 3–4. Walter, as IPS’s

director, had sufficient personal knowledge of the document’s content because IPS initially

discovered the document before sending it to NSS, which then requested redactions that IPS

performed. Id. She also adequately justifies withholding parts of the document, explaining that the

redacted information discussed issues that were of media interest at the time but were not related to

the subject of Freedom Watch’s request. Id. The practice of redacting non-responsive materials

from documents produced in response to FOIA requests has been approved by courts in this Circuit.

See, e.g., Menifee v. Dep’t of the Interior, 931 F. Supp. 2d 149, 167 (D.D.C. 2013); Pinson v.

Lappin, 806 F. Supp. 2d 230, 237 (D.D.C. 2011); Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140,

156 (D.D.C. 2010), aff’d, 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010). 1

       In summary, the State Department has submitted “reasonably detailed” declarations “setting

forth the search terms and the type of search performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched[.]” Oglesby, 920 F.2d at 68. Because

Freedom Watch has not offered evidence to counter the Department’s declarations, the State

Department has satisfied its burden to establish that it conducted an adequate search in response to

Freedom Watch’s FOIA request.




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  Freedom Watch also argues that it cannot know if the search was adequate without knowing how
many subsidiary departments actually exist within the State Department and expresses skepticism
that “a large federal agency throughout the world[] only has two databases from which to search.”
Pl.’s Opp. to Mot. for Summ. J. at 7. As stated above, however, mere speculation that other record
systems should exist does not contradict the State Department’s affidavits explaining why certain
record systems were determined likely to contain responsive records. See SafeCard Servs., 926
F.2d at 1201. The Court also notes that the State Department’s website provides a publically
available chart of its subsidiary departments. Department Organization Chart: March 2014, U.S.
Department of State, http://www.state.gov/r/pa/ei/rls/dos/99494.htm (last visited June 12, 2014).
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       B. The State Department’s Vaughn Index

       In addition to challenging the adequacy of the State Department’s search, Freedom Watch

argues in its opposition that the Department failed to create a Vaughn index for the withheld

documents. Pl.’s Opp. to Mot. for Summ. J. at 8–9. The only document withheld when Freedom

Watch filed its opposition was the NSS document, which, as explained above, the State Department

adequately justified redacting. After conducting supplemental searches, the State Department

withheld several other documents in whole or in part, but detailed for each record the type of

document, the author of the document, a general description of the contents of the document, and

the basis for the exemption being claimed. See Second Supplemental Walter Decl. ¶¶ 20–47.

“[A]n agency does not have to provide an index per se, but can satisfy its burden by other means,

such as . . . providing a detailed affidavit or declaration.” Voinche v. FBI, 412 F. Supp. 2d 60, 65

(D.D.C. 2006) (citing Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994)). The descriptions in

Walter’s declaration “give the reviewing court a reasonable basis to evaluate the claim of

privilege,” Gallant, 26 F.3d at 172–73, and thus adequately support the State Department’s

withholdings.

       C. Exemption 5

       FOIA Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 522(b)(5). Exemption 5 encompasses the deliberative process privilege, which

protects “‘documents reflecting advisory opinions, recommendations and deliberations comprising

part of a process by which governmental decisions and polices are formulated.’” Dep’t of Interior

v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck

& Co., 421 U.S. 132,150 (1975)). The purpose behind the privilege—and thus Exemption 5—is “to

enhance the quality of agency decisions by protecting open and frank discussion among those who

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make them within the Government.” Id. at 9.

       Pursuant to Exemption 5, the State Department withheld portions of three documents and all

of one document because they contained briefing material for senior department officials with

“preliminary thoughts and ideas determined to be important for preparing [the] senior official[s] for

an interview with a journalist from a major news media organization.” Second Supplemental

Walter Decl. ¶¶ 27, 31, 46, 47. Because these documents reflect intra-agency deliberations on

communications with the media, they fall within the deliberative process privilege and are covered

under Exemption 5. See Judicial Watch, Inc. v. Dep’t of Commerce, 337 F. Supp. 2d 146, 174

(D.D.C. 2004) (agency properly withheld “talking points and recommendations for how to answer

questions . . . . prepared by [agency] employees for the consideration of [agency] decision-

makers”); see also Competitive Enter. Inst. v. EPA, 12-1617, 2014 WL 308093, at *10–11 (D.D.C.

Jan. 29, 2014) (Exemption 5 held to protect “media-related withholdings . . . reflect[ing] ongoing

decisionmaking about ‘how the agency’s activities should be described to the general public’”).

       D. Exemption 6

       FOIA Exemption 6 allows agencies to withhold “personnel and medical files and similar

files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(6). “Similar files” broadly include documents containing “purely personal

information.” See, e.g., Gov’t Accountability Project v. Dep’t of State, 699 F. Supp. 2d 97, 106

(D.D.C. 2010) (citing Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)).

       The State Department withheld information in 17 documents provided to Freedom Watch

pursuant to Exemption 6 because the redacted information consisted of personal email addresses,

phone numbers, and details of individuals’ personal lives. Second Supplemental Walter Decl. ¶¶

28–30, 32–45. Such “purely personal information” clearly falls within Exemption 6.




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        IV.    Conclusion

        For the foregoing reasons, the Court will grant the State Department’s motion for Summary

Judgment. The Court will issue an order in accordance with this Memorandum Opinion.




Date:     June 12, 2014

                                                          CHRISTOPHER R. COOPER
                                                          United States District Judge




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