 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 2, 2015                  Decided April 24, 2015

                        No. 14-5174

                   FREEDOM WATCH, INC.,
                        APPELLANT

                              v.

            NATIONAL SECURITY AGENCY, ET AL.,
                       APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-01088)


    Larry Klayman argued the cause and filed the briefs for
appellant.

     Catherine H. Dorsey, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Ronald C. Machen, Jr., U.S. Attorney at the time the
brief was filed, and Matthew M. Collette, Attorney.

    Before: ROGERS, TATEL, and SRINIVASAN, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge TATEL.
                              2



    TATEL, Circuit Judge: On June 1, 2012, the New York
Times published an article by investigative reporter David E.
Sanger 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.” David E.
Sanger, Obama Order Sped Up Wave of Cyberattacks Against
Iran, N.Y. TIMES, June 1, 2012, at A1. Later that day,
appellant Freedom Watch, a self-styled “public interest group
acting on behalf of the public at large,” Appellant’s Br. 2,
filed a request under the Freedom of Information Act (FOIA),
5 U.S.C. § 552, seeking records relating to the Sanger article
from four federal agencies—the Central Intelligence Agency
(CIA), the National Security Agency (NSA), the Department
of Defense (DoD), and the State Department. Specifically,
Freedom Watch sought documents concerning each of the
following topics (only the second is at issue here):

     1) Any and all information that refers or relates
        to the New York Times article . . . and which
        information was provided and leaked to Mr.
        Sanger and the New York Times;

     2) Any and all information that refers or relates
        in any way to information released to David
        E. Sanger and/or made available to him;

     3) The names of the persons, employers and job
        titles, and addresses of those who leaked the
        above information to David E. Sanger;
                              3
     4) 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;

     5) Any and all information that refer[s] or
        relate[s] to the decision to leak the above
        previously classified information; [and]

     6) Any and all information that refers or relates
        to government agencies deciding to
        investigate who leaked the above previously
        classified information.

Compl. 2–3 (internal quotation marks omitted).

      Three of the agencies—CIA, NSA, and DoD—denied the
request on national security grounds. Issuing what is known as
a Glomar response, each agency stated that it could “neither
confirm nor deny the existence or non-existence” of
responsive records. See Defs.’ Mot. for J. on the Pleadings &
Mot. for Partial Summ. J. 2–4 & Exs. A, B, D (citing 5 U.S.C.
§ 552(b)(1)). CIA and NSA also advised Freedom Watch of
its right to administratively appeal, and the State Department
informed the organization that it was processing the request.
See id. at Ex. C; see also 5 U.S.C. § 552(a)(6)(A)(i).

    After FOIA’s twenty-day deadline expired, 5 U.S.C.
§ 552(a)(6)(A), Freedom Watch filed suit in the U.S. District
Court for the District of Columbia seeking to compel the four
agencies to search for and produce responsive documents.
Contending that Freedom Watch had failed to exhaust its
administrative remedies, two of the agencies—CIA and
                               4
NSA—moved for judgment on the pleadings, and DoD,
relying on FOIA’s national security exemption, 5 U.S.C.
§ 552(b)(1), moved for summary judgment. The district court
granted each motion, resolving all claims in those agencies’
favor. The State Department also moved for judgment on the
pleadings, and the district court, finding requests 1 and 3–6
unduly speculative, granted the motion as to all but the
second, i.e., information released to David Sanger. See Defs.’
Mot. for J. on the Pleadings & Mot. for Partial Summ. J.
8–18; Freedom Watch, Inc. v. NSA, No. 1:12-cv-01088, 2014
WL 2768849, at *1 (D.D.C. June 12, 2014) (citing District
Court Order, Docket No. 8 (Dec. 13, 2012)).

     Undertaking both electronic searches of record systems
and manual searches of physical documents, the State
Department discovered and produced three responsive
records. But after moving for summary judgment on the
ground that it had thus satisfied its FOIA obligations, the
Department found additional responsive records and decided
to search other locations. To accomplish this, it sought and
received a 60-day extension to conduct a supplemental search
and to respond to Freedom Watch’s opposition brief, during
which time it uncovered 76 more responsive documents. In
the end, the State Department produced a total of 79
documents responsive to Freedom Watch’s FOIA request,
releasing 58 in full and 20 in part, and withholding one in its
entirety. See Freedom Watch, 2014 WL 2768849, at *1–2
(outlining search efforts and sequence of events). Responding
to Freedom Watch’s opposition brief, the Department
described its additional search efforts and stated that it “would
not oppose the filing of a surreply [by Freedom Watch] to
address the documents produced as a result of th[e]
supplemental search.” State Dep’t Reply in Supp. of Mot. for
Summ. J. 2 n.1. Freedom Watch never filed a surreply, though
                               5
it did move to depose a State Department records custodian,
arguing that the initial search was part of a pattern of “delay,
obfuscation, and outright obstruction of justice.” Mot. for
Discovery 1. The district court, finding no evidence of bad
faith by the State Department, denied the motion. See
Freedom Watch, 2014 WL 2768849, at *2 (citing District
Court Minute Order (June 18, 2013)). The court also granted
the State Department’s motion for summary judgment, noting
that “Freedom Watch does not object to the adequacy of the
[Department’s] supplemental searches” and concluding that
the State Department had “met its burden by conducting
searches that were reasonably calculated to find responsive
records.” Id. at *3–4.

    In this appeal, Freedom Watch challenges the Glomar
responses of NSA, CIA, and DoD, as well as the adequacy of
the State Department’s search. As to that search, Freedom
Watch argues that the district court erred in granting the State
Department summary judgment because (1) the search
impermissibly entailed electronic key-word searches, (2) the
Department improperly withheld a one-page press-briefing
memo pursuant to FOIA’s deliberative-process privilege, 5
U.S.C. § 552(b)(5), and (3) Freedom Watch was entitled to
additional discovery—in particular, an opportunity to depose
a State Department records custodian—before summary
judgment.

     After briefing was complete in this court but prior to oral
argument, Freedom Watch moved to supplement the record
with news articles relating to the revelation that former
Secretary of State Hillary Clinton, while leading the State
Department, had maintained a private email account run on a
private server. See Appellant’s Mot. to Supplement R.; see
also, e.g., Danny Yadron & Rebecca Ballhaus, Hillary
                               6
Clinton’s Custom Email Based on Server Near Her Home,
WALL ST. J., Mar. 5, 2015. Alleging that the State Department
had failed to produce all records responsive to its FOIA
request due to the former Secretary’s use of the private server,
Freedom Watch sought to “expand [the] search for documents
on remand.” Appellant’s Mot. to Supplement R. 1–2. In
response, the government suggested that we remand the case
to the district court to “permit the State Department to process
and search the emails recently provided by former Secretary
Clinton to the agency.” Gov’t Resp. to Mot. to Supplement R.
2. The government explained that the State Department plans
to review those emails for possible public release and to make
them “available to the public by posting them on a State
Department website.” Id. This plan, the government asserted,
would not only render unnecessary Freedom Watch’s request
to supplement the record, but also “make the maximum
number of records available to plaintiff . . . in the shortest
amount of time, and [] be considerably more efficient than
reviewing the documents piecemeal in response to
subject-specific FOIA requests.” Id. The government also
explained that the Department’s search for responsive records
had been more extensive than described to the district court,
even “including some records of the Office of the Secretary.”
Id. at 3. As a result, “partial remand is appropriate to provide
the State Department an opportunity to supplement the record
as to what searches were actually performed with regard to
records maintained by the Executive Secretariat.” Id. at 3–4.

    Based on the government’s representations, we shall deny
Freedom Watch’s motion to supplement the record and
remand to the district court to manage record development
and oversee the search of the former Secretary’s emails for
records responsive to Freedom Watch’s FOIA request. In
doing so, we remind the State Department that, although it
                                 7
may choose of its own accord to release the emails to the
public at large, it has a statutory duty to search for and
produce documents responsive to FOIA requests “in the
shortest amount of time.” Id. at 2; see also 5 U.S.C.
§ 552(a)(6)(A) (providing FOIA’s stringent time limits). The
district court should therefore determine the most efficient
way to proceed under FOIA.

     This leaves Freedom Watch’s remaining arguments,
which we can easily resolve. As to the Glomar responses of
NSA and CIA, the district court properly granted the agencies
judgment on the pleadings because Freedom Watch failed to
internally appeal the agencies’ denials and thus to exhaust its
administrative remedies before seeking judicial review. See
Sinito v. DOJ, 176 F.3d 512, 516 (D.C. Cir. 1999) (“FOIA
requires each requestor to exhaust administrative remedies”
before seeking judicial review). Summary judgment in favor
of DoD was likewise proper because the agency supported its
Glomar response with an uncontroverted declaration
explaining “the justifications for nondisclosure with
reasonably specific detail.” Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007) (internal quotation marks and citation
omitted). As the declaration explains, because Freedom
Watch seeks documents concerning a leak of information
about     cyberattacks     on     Iran’s     nuclear     facilities,
“[a]cknowledging the existence or non-existence of records
responsive to plaintiff’s request could reveal whether the
United States, and specifically DoD, conducts or has
conducted cyber-attacks against Iran.” Defs.’ Mot. for J. on
the Pleadings & Mot. for Partial Summ. J. Ex. D, at 4. In
DoD’s judgment, such a disclosure would “cause damage to
national security by providing insight into DoD’s military and
intelligence capabilities and interests,” id. at 5, and we accord
that judgment “substantial weight,” Wolf, 473 F.3d at 376
                               8
(courts must accord “substantial weight” to “agency assertions
of potential harm made in order to invoke the protection of
FOIA[’s national security exemption]”).

     All of Freedom Watch’s objections to the district court’s
grant of summary judgment to the State Department fail as
well. First, although the State Department provided
declarations outlining its search methods, which included
full-text electronic searches for relevant terms like “Sanger”
and “David Sanger,” see State Dep’t Mot. for Summ. J.,
Attach. 1, at 6–7; State Dep’t Reply in Supp. of Mot. for
Summ. J., Attach. 1, at 4–7, Freedom Watch never objected in
the district court to the Department’s use of key-word
searches. “It is well settled that issues and legal theories not
asserted at the District Court level ordinarily will not be heard
on appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d
1077, 1084 (D.C. Cir. 1984). In any event, not only does
FOIA expressly permit automated searches, see 5 U.S.C.
§ 552(a)(3)(D) (explaining that “‘search’ means to review,
manually or by automated means”) (emphasis added), but
State Department employees also manually searched files for
responsive documents, see State Dep’t Mot. for Summ. J.,
Attach. 1, at 7; State Dep’t Reply in Supp. of Mot. for Summ.
J., Attach. 1, at 3–7. Freedom Watch likewise forfeited its
challenge to the Department’s withholding of the
press-briefing memo. The Department invited Freedom Watch
to file a surreply to “address the documents produced as a
result of [the Department’s] supplemental search,” including
the briefing memo, State Dep’t Reply in Supp. of Mot. for
Summ. J. 2 n.1, but Freedom Watch failed to do so. Finally,
we see no abuse of discretion in the district court’s denial of
Freedom Watch’s request for additional discovery. See
SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (“This court will overturn the district court’s
                              9
exercise of its broad discretion to manage the scope of
discovery only in unusual circumstances.”). As we have
explained, “[a]n agency may establish the adequacy of its
search by submitting reasonably detailed, nonconclusory
affidavits describing its efforts.” Baker & Hostetler LLP v.
U.S. Department of Commerce, 473 F.3d 312, 318 (D.C. Cir.
2006). Because the State Department did exactly that, the
district court “ha[d] discretion to forgo discovery and award
summary judgment on the basis of affidavits.” Goland v. CIA,
607 F.2d 339, 352 (D.C. Cir. 1978). To be sure, Freedom
Watch argued that “the circumstances [of the search] raise a
presumption [of] bad faith behavior” by the State Department
such that additional discovery was justified. Appellant’s Br.
34. But Freedom Watch offered no evidence to support that
allegation, and “[a] mere assertion of bad faith is not
sufficient to overcome a motion for summary judgment.”
Baker & Hostetler LLP, 473 F.3d at 318 (internal quotation
marks and citation omitted).

    For the foregoing reasons, we remand to the district court
to proceed in accordance with this opinion and affirm in all
other respects.

                                                  So ordered.
