Government Declarations in Snowden Damage Assessment FOIA Case

Case 1:14-cv-00197-TSC Document 13-3 Filed 02/09/15 Page 1 of 14
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES
)
DEPARTMENT OF DEFENSE,
)
)
Defendant.
)
____________________________________)
Case No. 1:14-cv-00197-TSC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS

MOTION FOR SUMMARY JUDGMENT
JOYCE R. BRANDA
Acting Assistant Attorney General
RONALD C. MACHEN
United States Attorney
ELIZABETH J. SHAPIRO
Deputy Branch Director
STEVEN Y. BRESSLER
Senior Counsel
U.S. Department of Justice, Civil Division
Ben Franklin Station, P.O. Box 833
Washington, D.C. 20044
Counsel for Defendant
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 4
I. Statutory Standards ................................................................................................................. 4
A. The Freedom of Information Act .......................................................................................4
B. Special Considerations in National Security Cases...........................................................6
II. Defendant is Entitled to Summary Judgment. ..................................................................... 8
A. Defendant has Properly Withheld Classified National Security Information
Pursuant to FOIA Exemption 1.........................................................................................8
1. Information Was Classified by an Original Classification Authority. ...........................9
2. Information Was Produced By the United States Government. ....................................9
3. The DIA Has Properly Withheld Classified Information Pertaining to
Military Plans, Operations, and Systems Pursuant to Section 1.4(a) of
Executive Order 13,526. ................................................................................................9
4. The DIA Has Properly Withheld Foreign Government Information
Pursuant to Section 1.4(b) of Executive Order 13,526. ...............................................10
5. DIA Has Properly Withheld Information Pertaining to Intelligence
Sources and Methods That is Classified Pursuant to Section 1.4(c) of
Executive Order 13,526. ..............................................................................................10
6. DIA Properly Withheld Information Relating to the United States
Foreign Relations or Foreign Activities That is Classified Pursuant to
Section 1.4(d) of Executive Order 13,526. ..................................................................11
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7. DIA Has Properly Withheld Information Pertaining to Scientific and

Technical Matters Related to National Security That is Properly
Classified Pursuant to Section 1.4(e) of Executive Order 13,526. ..............................12
8. DIA Has Properly Withheld Information Pertaining to National
Security Vulnerabilities That is Properly Classified Pursuant to
Section 1.4(g) of Executive Order 13,526. ..................................................................13
9. DIA Has Properly Withheld Information Pertaining to Weapons of
Mass Destruction That is Properly Classified Pursuant to Section
1.4(h) of Executive Order 13,526. ...............................................................................14
B. Defendant Properly Withheld Information Pursuant to FOIA Exemption 3 ..................14
C. Defendant Properly Withheld Information Subject to the Deliberative
Process Privilege Pursuant to Exemption 5. ...................................................................18
D. Defendant Properly Withheld Individuals Personal Information Pursuant
to FOIA Exemption 6......................................................................................................20
E. Defendant has Released All Non-Exempt, Reasonably Segregable Portions
of the Responsive Documents. ........................................................................................22
F. Defendants Search for Responsive Records Satisfies FOIA. ........................................23
G. Plaintiffs Claim as to the Timeliness of Defendants Response is Moot. ......................25
CONCLUSION ............................................................................................................................. 26
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TABLE OF AUTHORITIES
CASES
PAGE(S)
ACLU v. Dep't of Defense,

628 F.3d 612 (D.C. Cir. 2011) .................................................................................................. 17
ACLU v. Dep't of Justice,
265 F. Supp. 2d 20 (D.D.C. 2003) .............................................................................................. 7
ACLU v. FBI,
429 F. Supp. 2d 179 (D.D.C. 2006) .......................................................................................... 12
Assassination Archives & Research Ctr. v. CIA,
334 F.3d 55 (D.C. Cir. 2003) .................................................................................................... 18
Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,
830 F.2d 331 (D.C. Cir. 1987) .............................................................................................. 6, 15
Baez v. Dep't of Justice,
647 F.2d 1328 (D.C. Cir. 1980) ................................................................................................ 22
Baker & Hostetler LLP v. Dep't of Commerce,
473 F.3d 312 (D.C. Cir. 2006) ................................................................................................ 4, 5
Carter v. Dept of Commerce,
830 F.2d 388 (D.C. Cir. 1987) ................................................................................................. 21
CIA v. Sims,
471 U.S. 159 (1985) ........................................................................................................ 4, 15, 17
Coastal States Gas Corp. v. Dep't of Energy,
617 F.2d 854 (D.C. Cir. 1980) .................................................................................................. 19
Ctr. for Nat'l Sec. Studies v. Dep't of Justice,
331 F.3d 918 (D.C. Cir. 2003) ...................................................................................... 4, 6, 7, 11
Dep't of Defense v. Fed. Labor Relations Auth.,
510 U.S. 487 (1994) .................................................................................................................. 21
Dep't of Interior v. Klamath Water Users Protective Ass'n,
532 U.S. 1 (2001) ...................................................................................................................... 19
-iii-
Dep't of Justice v. Reporters Committee for Freedom of the Press,

489 U.S. 749 (1989) ............................................................................................................ 20, 22
Fitzgibbon v. CIA,
911 F.2d 755 (D.C. Cir. 1990) .......................................................................................... 7, 9, 11
Frugone v. CIA,
169 F.3d 772 (D.C. Cir. 1999) ................................................................................................ 7, 9
Goland v. CIA,
607 F.2d 339 (D.C. Cir. 1978) .................................................................................................. 16
Ground Saucer Watch v. CIA,
692 F.2d 770 (D.C. Cir. 1981) .............................................................................................. 5, 24
Hayden v. NSA,,
608 F.2d 1381 (D.C. Cir. 1979) ................................................................................................ 18
Heggestad v. Dep't of Justice,
182 F. Supp. 2d 1 (D.D.C. 2000) .............................................................................................. 19
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) .................................................................................................. 18
John Doe Agency v. John Doe Corp.,
493 U.S. 146 (1989) ................................................................................................................ 4, 5
Johnson v. Exec. Office for U.S. Attorneys,
310 F.3d 771 (D.C. Cir. 2002) ............................................................................................ 23, 24
Judicial Watch v. Dep't of Justice,
306 F. Supp. 2d 58 (D.D.C. 2004) ............................................................................................ 12
Kidd v. Dep't of Justice,
362 F. Supp. 2d 291 (D.D.C. 2005) .......................................................................................... 25
King v. Dep't of Justice,
830 F.2d 210 (D.C. Cir. 1987) ............................................................................................ 6, 7, 8
Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136 (1980) .................................................................................................................... 6
Krikorian v. Dept of State,
984 F.2d 461 (D.C. Cir. 1993) .................................................................................................. 17
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Larson v. Dep't of State,

565 F.3d 857 (D.C. Cir. 2009) ........................................................................................... passim
Larson v. Dep't of State,
Civ. No. 02-1937 (PLF), 2005 WL 3276303 (D.D.C. Aug. 10, 2005) ..................................... 16
Lesar v. Dep't of Justice,
636 F.2d 472 (D.C. Cir. 1980) .................................................................................................. 22
Loving v. Dep't of,
Def., 496 F. Supp. 2d 101 (D.D.C. 2007) ................................................................................. 23
Mapother v. Dep't of Justice,
3 F.3d 1533 (D.C. Cir. 1993) .................................................................................................... 18
Maynard v. CIA,
986 F.2d 547 (1st Cir. 1993) ....................................................................................................... 5
Mead Data v. Dep't of the Air Force,
566 F.2d 242 (D.C. Cir. 1977) .................................................................................................. 23
Meeropol v. Meese,
790 F.2d 942 (D.C. Cir. 1986) .................................................................................................. 24
Military Audit Project v. Casey,
656 F.2d 724 (D.C. Cir. 1981) .................................................................................................... 6
Miller v. Dep't of Justice,
562 F. Supp. 2d 82 (D.D.C. 2008) ............................................................................................ 16
Minier v. CIA,
88 F.3d 796 (9th Cir. 1996) ........................................................................................................ 5
Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885 (D.C. Cir. 1995) ...................................................................................................... 4
Nat'l Sec. Archive Fund, Inc. v. CIA,
402 F. Supp. 2d 211 (D.D.C. 2005) .................................................................................... 22, 23
NLRB v. Sears, Roebuck & Co.,
421 U.S. 132 (1975) .................................................................................................................. 18
Oglesby v. Dep't of Army,
920 F.2d 57 (D.C. Cir. 1990) ............................................................................................ 4, 5, 24
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Painting & Drywall Work Preservation Fund, Inc. v. HUD,

936 F.2d 1300 (D.C. Cir. 1991) .......................................................................................... 20, 21
Perry v. Block,
684 F.2d 121 (D.C. Cir. 1982) ............................................................................................ 24, 25
Public Citizen, Inc. v. Office of Management & Budget,
598 F.3d 865 (D.C. Cir. 2009) .................................................................................................. 20
Ray v. Turner,
587 F.2d 1187 (D.C. Cir. 1978) .................................................................................................. 7
Reed v. NLRB,
927 F.2d 1249 (D.C. Cir. 1991) ................................................................................................ 21
Reliant Energy Power Generation, Inc. v. FERC,
520 F. Supp. 2d 194 (D.D.C. 2007) ............................................................................................ 6
Roberts v. Dep't of Justice,
No. 92-1707, 1995 WL 356320 (D.D.C. Jan. 29, 1993) ........................................................... 25
Russell v. Dep't of the Air Force,
682 F.2d 1045 (D.C. Cir. 1982) .......................................................................................... 18, 19
Sack v. CIA, --- F.Supp.2d ----,
Civ. No. 12-244 (EGS), 2014 WL 3375568 (D.D.C. July 10, 2014) ................................................ 17
SafeCard Servs., Inc. v. SEC,

926 F.2d 1197 (D.C. Cir. 1991) ................................................................................................ 24
Schoenman v. FBI,
763 F. Supp. 2d. 173 (D.D.C. 2011) ......................................................................................... 23
Schrecker v. Dep't of Justice,
349 F.3d 657 (D.C. Cir. 2003) .................................................................................................. 24
Steinberg v. Dep't of Justice,
23 F.3d 548 (D.C. Cir. 1994) ...................................................................................................... 5
Tax Analysts v. IRS,
294 F.3d 71 (D.C. Cir. 2002) .................................................................................................... 18
Tex. Indep. Producers Legal Action Ass'n v. IRS,
605 F. Supp. 538 (D.D.C. 1984) ............................................................................................... 24
Tijerina v. Walters,
821 F.2d 789 (D.C. Cir. 1987) .................................................................................................. 25
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Valencia-Lucena v. U.S. Coast Guard,

180 F.3d 321 (D.C. Cir. 1999) .................................................................................................... 5
Voinche v. FBI,
940 F. Supp. 323 (D.D.C. 1996) ............................................................................................... 22
W. Ctr. for Journalism v. IRS,
116 F. Supp. 2d 1 (D.D.C. 2000) .............................................................................................. 25
Weisberg v. Dep't of Justice,
705 F.2d 1344 (D.C. Cir. 1983) .................................................................................................. 5
Weisberg v. Dep't of Justice,
745 F.2d 1476 (D.C. Cir. 1984) ...................................................................................... 5, 24, 25
Wilbur v. CIA,
355 F.3d 675 (D.C. Cir. 2004) .................................................................................................... 5
Wilson v. DEA,
414 F. Supp. 2d 5 (D.D.C. 2006) ................................................................................................ 5
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) .................................................................................................... 8
Zadvydas v. Davis,
533 U.S. 678 (2001) .................................................................................................................... 7
STATUTES
5 U.S.C. 552 ........................................................................................................................ passim
10 U.S.C. 424 ............................................................................................................................. 16
50 U.S.C. 403-1(i)(1) ..................................................................................................... 16, 17, 18
50 U.S.C. 403-3(c)(7) ................................................................................................................ 17
Pub. L. No. 111-83, tit. V, 564, 123 Stat. 2184 (2009) ............................................................. 15
REGULATIONS
32 C.F.R. Part 385........................................................................................................................... 1
EXECUTIVE ORDERS
E.O. 13,526 ............................................................................................................................ passim
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LEGISLATIVE MATERIALS
H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423........................ 4
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PRELIMINARY STATEMENT
Plaintiff in this Freedom of Information Act case, Jason Leopold, requested of the
Defense Intelligence Agency (DIA) a component of defendant the United States Department
of Defense a copy of a report prepared by DIA assessing the damage done by unauthorized
disclosures of classified information in 2013 by former National Security Agency contractor
Edward Snowden. Plaintiff also requested any DIA records referencing that damage assessment.
In response, the DIA located 112 responsive documents. As explained in the agencys Vaughn
declarations and index (submitted as attachments to defendants Motion), DIA released to
plaintiff those portions of the responsive records that are not exempt from FOIA disclosure
pursuant to 5 U.S.C. 552(b). The DIA appropriately redacted material that is classified
pursuant to Executive Order and therefore subject to FOIA Exemption 1, material that is
properly withheld pursuant to the operation of other statutes and therefore subject to FOIA
Exemption 3, material that is protected by the deliberative process privilege and therefore subject
to FOIA Exemption 5, and material that would unduly invade the privacy of individuals and is
therefore subject to FOIA Exemption 6.
As explained in the sworn testimony of DIA officials, the agency has released all nonexempt portions of the responsive records to plaintiff. The Court should, accordingly, grant
summary judgment to defendant.
BACKGROUND
The DIA is a component of the United States Department of Defense. See Declaration of
Alesia Williams, 4. Its mission is to collect, analyze, and provide intelligence on the military
capabilities of foreign military forces to the Secretary of Defense, the Joint Chiefs of Staff, and
other DOD components. Id. Because of its mission to collect, analyze, and provide foreign
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intelligence, most DIA records are classified in the interests of national security in accordance
with Executive Order 13,526. Id.
On January 31, 2014, plaintiff submitted a FOIA request to DIA for records pertaining to
a report described in Foreign Policy regarding the assessment of the potential impact to the DOD
from the compromise of leaked information by former NSA contractor, Edward Snowden. See
Williams Decl., 5 & Exh. A; Compl. 21, Answer 21. Plaintiff requested all records that
were prepared, received, transmitted, collected, and/or maintained by DIA mentioning or
referring to this referenced report. Williams Decl., 5 & Exh. A. Plaintiff, claiming the
requested records were urgently needed and that he was primarily engaged in disseminating
information to inform the public about the federal governments activities, also requested
expedited treatment of his request. Id.
On February 4, 2014, DIAs FOIA office wrote to plaintiff to confirm receipt of the
FOIA request and informing plaintiff that DIA had denied his request for expedited processing
pursuant to Section C1.5.4.3 of the Defense FOIA Regulation 5400.7-R. Williams Decl. 6 &
Exh. B. DIA also informed Mr. Leopold of a substantial delay in processing FOIA requests and
indicated to Mr. Leopold that his request would be processed in the order that it was received.
Id. One week later, on February 11, 2014, plaintiff filed his Complaint in this action. Williams
Decl. 7; Compl.
Upon review of plaintiffs FOIA request, the DIA FOIA office determined that DIAs
Directorate for Operations (DO) was the only Directorate or portion of the agency that could
reasonably be expected to maintain records related to the report mentioned in Mr. Leopolds
FOIA request. Williams Decl. 8. DO contained a Task Force created to evaluate the damage
done to national security from the Snowden disclosures which prepared the Damage Assessment
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plaintiff requested. The Task Forces work and files, including any records referencing the
Damage Assessment, are required to be kept in the Task Forces filing system, segregated from
other records. Id.
The Chief of the Task Force directed a search for responsive records and assigned the
Task Force records officer and technical lead to conduct the search. Id. 9. The records officer
examined the Task Forces compartmented system of records and located 112 documents
responsive to plaintiffs FOIA request. Williams Decl. 10. Following a review, on May 21,
2014, DIA released through counsel one document (the Damage Assessment itself) to plaintiff in
part. Id. 11. On August 7, 2014, DIA provided plaintiff, through counsel, a further response
explaining that it was withholding 109 in full pursuant to FOIA. Williams Decl. 12 & Exh. C.
Then on November 7, 2014, DIA informed plaintiff, through counsel, that the final two
responsive documents had also been withheld in full in full pursuant to FOIA. Williams Decl.
13 & Exh. D.
DIA subsequently re-reviewed all 112 responsive records to ensure it had released to
plaintiff all segregable, non-exempt information. Williams Decl. 14. Following that further
thorough consideration, on February 9, 2015, DIA provided plaintiff, through counsel, a
supplemental response to his FOIA request that released portions of many of the documents that
had been previously withheld in full. Id. The agency released a small amount of information,
such as document section headings, that could be segregated from the exempt portions of the
documents. Id.
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ARGUMENT
I. Statutory Standards
A. The Freedom of Information Act
FOIAs basic purpose reflects a general philosophy of full agency disclosure unless
information is exempted under clearly delineated statutory language. John Doe Agency v. John
Doe Corp., 493 U.S. 146, 152 (1989) (citation and internal quotation marks omitted). Congress
recognized, however, that public disclosure is not always in the public interest. CIA v. Sims,
471 U.S. 159, 16667 (1985). Accordingly, in passing FOIA, Congress sought to reach a
workable balance between the right of the public to know and the need of the Government to
keep information in confidence to the extent necessary without permitting indiscriminate
secrecy. John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966),
reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As the D.C. Circuit has recognized, FOIA
represents a balance struck by Congress between the publics right to know and the
governments legitimate interest in keeping certain information confidential. Ctr. for Natl Sec.
Studies v. Dept of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493
U.S. at 152).
When conducting a search for records responsive to a FOIA request, an agency must
make a good faith effort to conduct a search for the requested records, using methods which can
be reasonably expected to produce the information requested. Nation Magazine v. U.S.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. Dept of Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). An agency may establish the adequacy of its search by submitting
reasonably detailed, nonconclusory affidavits describing its efforts, Baker & Hostetler LLP v.
Dept of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006), including by setting forth the search
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terms and the type of search performed, and averring that all files likely to contain responsive
materials (if such records exist) were searched, Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68). The Court must evaluate not
whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate. Steinberg v. Dept of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dept of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984)). Accordingly, an agencys failure to turn up a particular document, or mere speculation
that as yet uncovered documents might exist, does not undermine the determination that the
agency conducted an adequate search for the requested records. Wilbur v. CIA, 355 F.3d 675,
678 (D.C. Cir. 2004) (per curiam). In evaluating the adequacy of a search, courts recognize that
[a]gency affidavits enjoy a presumption of good faith, which will withstand purely speculative
claims about the existence and discoverability of other documents. Ground Saucer Watch v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981); see Baker & Hostetler, 473 F.3d at 318; Goland v.
CIA, 607 F.2d 339, 35253 (D.C. Cir. 1978). Accordingly, a plaintiff bears an evidentiary
burden to present evidence rebutting the agencys initial showing of a good faith search. See
Wilson v. DEA, 414 F. Supp. 2d 5, 12 (D.D.C. 2006) (citing Maynard v. CIA, 986 F.2d 547, 560
(1st Cir. 1993); Weisberg v. Dept of Justice, 705 F.2d 1344, 1351-52 (D.C. Cir. 1983)).
FOIA mandates disclosure of agency records unless the requested information falls
within one of nine enumerated exemptions. See 5 U.S.C. 552(b). A district court only has
jurisdiction to compel an agency to disclose improperly withheld agency records, i.e., records
that do not fall within an exemption. Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also
5 U.S.C. 552(a)(4)(B) (providing the district court with jurisdiction only to enjoin the agency
from withholding agency records and to order the production of any agency records improperly
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withheld from the complainant); Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 150 (1980) (Under 5 U.S.C. 552(a)(4)(B)[,] federal jurisdiction is dependent upon a
showing that an agency has (1) improperly (2) withheld (3) agency records.). FOIAs
statutory exemptions are intended to have meaningful reach and application, John Doe Agency,
493 U.S. at 152.
Most FOIA actions are resolved on summary judgment. Reliant Energy Power
Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). The government bears the
burden of proving that any withheld information falls within the exemptions it invokes. See 5
U.S.C. 552(a)(4)(B); King v. Dept of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A court
may grant summary judgment to the government based entirely on the basis of information set
forth in agency affidavits or declarations which describe the documents and the justifications
for nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981).
B.
Special Considerations in National Security Cases
Defendants have invoked Exemption 1 as one basis for declining to confirm or deny the
existence of certain information and records. Information withheld on the basis of Exemption 1
often implicat[es] national security, a uniquely executive purview. Ctr. for Natl Sec. Studies
v. Dept of Justice, 331 F.3d 918, 92627 (D.C. Cir. 2003). While courts review de novo an
agencys withholding of information pursuant to a FOIA request, de novo review in FOIA cases
is not everywhere alike. Assn of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331,
336 (D.C. Cir. 1987). Although de novo review calls for an objective, independent judicial
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determination, courts nonetheless defer to an agencys determination in the national security

context, acknowledging that the executive ha[s] unique insights into what adverse [e]ffects
might occur as a result of public disclosure of a particular classified record. Ray v. Turner, 587
F.2d 1187, 1194 (D.C. Cir. 1978) (internal quotation marks omitted). Courts have specifically
recognized the propriety of deference to the executive in the context of FOIA claims which
implicate national security. Ctr. for Natl Sec. Studies, 331 F.3d at 927 (citing Zadvydas v.
Davis, 533 U.S. 678, 696 (2001)).
Accordingly, courts have consistently deferred to executive affidavits predicting harm to
the national security, and have found it unwise to undertake searching judicial review. Ctr. for
Natl Sec. Studies, 331 F.3d at 927; see Larson v. Dept of State, 565 F.3d 857, 865 (D.C. Cir.
2009) (Today we reaffirm our deferential posture in FOIA cases regarding the uniquely
executive purview of national security.). [I]n the national security context, therefore, the
reviewing court must give substantial weight to agency declarations. ACLU v. Dept of
Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (quoting King, 830 F.2d at 217); see Frugone v.
CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (stating that because courts have little expertise in
either international diplomacy or counterintelligence operations, we are in no position to dismiss
the CIAs facially reasonable concerns about the harm that disclosure could cause to national
security); Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court
erred in perform[ing] its own calculus as to whether or not harm to the national security or to
intelligence sources and methods would result from disclosure). In according such deference,
a reviewing court must take into account . . . that any affidavit or other agency statement of
threatened harm to national security will always be speculative to some extent, in the sense that it
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describes a potential future harm. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (citation and
internal quotation marks omitted).
II.
Defendant is Entitled to Summary Judgment.

As explained below, the Court should grant summary judgment for defendant because the
withheld material is exempt from disclosure under FOIA Exemptions 1, 3, 5, and 6, 5 U.S.C.
552(b)(1), (3), (5), & (6).
A. Defendant has Properly Withheld Classified National Security Information
Pursuant to FOIA Exemption 1.
Exemption 1 protects from disclosure records that are (A) specifically authorized under
criteria established by an Executive order to be kept secret in the interest of national defense or
foreign policy, and (B) are in fact properly classified pursuant to such Executive order. 5
U.S.C. 552(b)(1). The current Executive Order, E.O. 13,526, governs the classification of
national security information.
An agency establishes that it has properly withheld information under Exemption 1 if it
demonstrates that it has met the classification requirements of E.O. 13,526. Section 1.1 of the
Executive Order sets forth four requirements for the classification of national security
information: (1) an original classification authority classifies the information; (2) the U.S.
Government owns, produces, or controls the information; (3) the information is within one of
eight protected categories listed in section 1.4 of the Order; and (4) the original classification
authority determines that the unauthorized disclosure of the information reasonably could be
expected to result in a specified level of damage to the national security, and the original
classification authority is able to identify or describe the damages. E.O. 13,526 1.1(a). As
noted, the Court must accord substantial weight to agency affidavits concerning classified
information, King, 830 F.2d at 217, and must defer to the expertise of agencies involved in
-8-
national security and foreign policy, particularly to those agencies articulations and predictive
judgments of potential harm to national security, see Larson, 565 F.3d at 865; Frugone, 169 F.3d
at 775; Fitzgibbon, 911 F.2d at 766. Here, the DIA has met both the procedural and substantive
requirements of the Executive Order, and so the classified portions of records responsive to
plaintiffs FOIA request are properly subject to Exemption 1.
1. Information Was Classified by an Original Classification Authority.
David Leatherwood, the Director for Operations for the DIA, has affirmed that he is
authorized to classify and declassify national security information. Leatherwood Decl. 1, 2.
He has personally reviewed the 112 documents at issue and determined that an original
classification authority properly classified the withheld information consistent with the
requirements of E.O. 13,526, and that the information remains properly classified. Id. 7.
2. Information Was Produced By the United States Government.
Director Leatherwood confirms that the information in the responsive documents was
produced by, and remains under the control of, the United States Government. Id. 4.
3. The DIA Has Properly Withheld Classified Information Pertaining to
Military Plans, Operations, and Systems Pursuant to Section 1.4(a) of
Executive Order 13,526.
Section 1.4(a) of Executive Order 13,526 permits the classification of information
concerning military plans, weapon systems, or operations. See Miller v. Dept of Justice, 562
F. Supp. 2d 82, 101 (D.D.C. 2008). DIA determined that one responsive record includes data
related to the effectiveness of current United States military operations, as well as the impact that
the leaks may have on the governments ability to conduct current and future military operations,
if such information is made public. Leatherwood Decl. 9. Disclosure of the effectiveness of
current United States military plans and operations would allow foreign governments and
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potential adversaries to re-evaluate current and future foreign operations and either modify those
operations, or develop new military plans capable of circumventing or defeating the military
plans and operations of the United States. Thus, as Director Leatherwood testifies, its release
could reasonably be expected to cause exceptionally grave damage to national security, and it is
properly classified Top Secret. Id. It is therefore properly withheld pursuant to FOIA
Exemption 1. 5 U.S.C. 552(b)(1).
4. The DIA Has Properly Withheld Foreign Government Information
Pursuant to Section 1.4(b) of Executive Order 13,526.
Section 1.4(b) of the Executive Order protects foreign government information. That
includes information provided to the United States Government by a foreign government or
governments . . . with the expectation that the information, the source of the information, or both,
are to be held in confidence. E .O. 13526, 6.1(s)(1). Thirteen of the withheld documents
contain such information. Leatherwood Decl. 10. As Director Leatherwood explains:
Foreign governments provide critical assistance to DIA operations under the
condition that their assistance is kept secret. Like the revelation of information
revealing individual human sources, disclosing the fact of a clandestine foreign
liaison relationship would suggest to all other foreign liaison services and foreign
government officials that the DIA is unable or unwilling to observe an agreement
of absolute secrecy. This perception could reasonably be expected to cause liaison
services and government officials to limit their provision of information to, or
cooperation with, the DIA, or even to end the relationship altogether, thus causing
the United States Government to lose valuable foreign intelligence. Moreover,
this perception could discourage foreign governments from entering into any kind
of relationship with the DIA.
Leatherwood Decl. 11. As Director Leatherwood also attests, releasing this information could
therefore be reasonably expected to cause exceptionally grave damage to national security, and
so he has determined it remains properly classified Top Secret. Id. 12. It is therefore properly
subject to FOIA Exemption 1. 5 U.S.C. 552(b)(1).
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5. DIA Has Properly Withheld Information Pertaining to Intelligence

Sources and Methods That is Classified Pursuant to Section 1.4(c) of
Section 1.4(c) of E.O. 13526 permits the classification of intelligence activities
(including covert action), intelligence sources or methods, or cryptology, recognizing that the
disclosure of such information could cause harm to national security. DIA has withheld such
information from all 112 responsive documents. Leatherwood Decl. 13, 15. As Director
Leatherwood testifies, [r]elease of this information would impair the intelligence collection
mission of the intelligence community and would provide adversaries enough knowledge
about specific collection techniques to potentially allow adversaries to develop countermeasures
to resist these techniques. Id. 15. This would render the intelligence sources and methods
useless, and thus could reasonably be expected to cause exceptionally grave damage to national
security. Id. The withheld information therefore remains currently and properly classified Top
Secret, and is subject to FOIA Exemption 1. Id.; 5 U.S.C. 552(b)(1). See also Larson, 565
F.3d at 863; Ctr. for Natl Sec. Studies, 331 F.3d at 928 (things that did not make sense to the
District Judge would make all too much sense to a foreign counter-intelligence specialist who
could learn much about this nations intelligence gathering capabilities from what these
documents revealed about sources and methods); Fitzgibbon v. CIA, 911 F.2d 755, 763 (D.C.
Cir. 1990) (each individual piece of intelligence information, much like a piece of jigsaw
puzzle, may aid in piecing together other bits of information even when the individual piece is
not of obvious importance itself) (citations omitted).
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6. DIA Properly Withheld Information Relating to the United States

Foreign Relations or Foreign Activities That is Classified Pursuant to
Section 1.4(d) of Executive Order 13,526.
Section 1.4(d) of Executive Order 13, 526 recognizes that the release of certain
information would impair U.S. government relations with foreign governments, and thus permits
the classification of certain information relating to foreign relations or foreign activities of the
United States, including confidential sources. Such information is contained in all the
responsive records except one (document V-9), and concerns both confidential sources and
sensitive aspects of U.S. foreign relations. Leatherwood Decl. 16. This includes confidential
information about the United States intelligence relationships and agreements with foreign
countries. Id. 17-18. As Director Leatherwood explains, disclosure of this information could
reasonably be expected to damage our relations with governments whose cooperation is
important to U.S. security and would hinder DIAs ability to collect and share intelligence.
Id. Director Leatherwood has determined that disclosure of this information could reasonably be
expected to cause serious or, in some cases, exceptionally grave damage to national security. Id.
18. It is therefore properly classified and subject to FOIA exemption 1. 5 U.S.C. 552(b)(1);
see, e.g., Krikorian v. Dept of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993) (upholding State
Departments withholding of telegrams containing communications from foreign government
officials given the Departments view that release would jeopardize reciprocal confidentiality
and damage national security); ACLU v. FBI, 429 F. Supp. 2d 179, 188 (D.D.C. 2006)
(upholding FBIs withholding of information to prevent the identification of ... cooperating
foreign governments); Judicial Watch v. Dept of Justice, 306 F. Supp. 2d 58, 66 (D.D.C. 2004)
(upholding Exemption 1 withholding of communications where disclosure could adversely
affect the persons involved, inhibit the willingness of corporate and foreign government officials
-12-
to discuss frankly with U.S. Government officials matters affecting our national interests, and
damage relations with the Dominican Republic).
7. DIA Has Properly Withheld Information Pertaining to Scientific and
Technical Matters Related to National Security That is Properly
Classified Pursuant to Section 1.4(e) of Executive Order 13,526.
Section 1.4(e) of Executive Order 13,526 permits the classification of scientific,
technological, or economic matters relating to the national security. DIA withheld such
information from two responsive records. Leatherwood Decl. 19. The information concerns
scientific and technological capabilities of foreign governments and the United States ability to
assess these capabilities, and it speaks to the United States ability to counter these capabilities
in the event they pose a threat to national security, especially those capabilities that involve
potential aid to transnational terrorism. Id. As Director Leatherwood explains, [r]elease of
this information would indicate to our adversaries the extent to which the United States
recognizes the strengths and/or weaknesses [of] foreign government capabilities and that could
allow those adversaries to either seek to rectify any identified weaknesses, or engage in
countermeasures in order to reduce the ineffectiveness of said capabilities. Id. Because
disclosure of the information could reasonably be expected to cause exceptionally grave damage
to national security, id., it is properly classified Top Secret and subject to FOIA Exemption 1. 5
U.S.C. 552(b)(1).
8. DIA Has Properly Withheld Information Pertaining to National Security
Vulnerabilities That is Properly Classified Pursuant to Section 1.4(g) of
Section 1.4(g) of Executive Order 13,526 permits the classification of information
pertaining to vulnerabilities or capabilities of systems, installations, infrastructures, projects,
plans, or protection services relating to the national security. DIA has withheld in six
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documents information that concerns the vulnerabilities of U.S. systems and installations, both
domestic and overseas, and the security measures in place to protect them from acts of
terrorism. Leatherwood Decl. 20.
As Director Leatherwood testifies:
Disclosure of this information could reasonably be expected to enable foreign

governments, persons, or entities to undertake measures that would expose these
vulnerabilities. This could, in turn, be reasonably expected to cause exceptionally
grave damage to national security because release of the classified information
would indicate to our adversaries the strengths and/or weaknesses of our systems.
Our adversaries could, in turn, either seek to exploit any identified weaknesses, or
engage in countermeasures in order to reduce the effectiveness of said systems.
Id. The withheld information is thus properly classified Top Secret and subject to FOIA
Exemption 1. 5 U.S.C. 552(b)(1).
9. DIA Has Properly Withheld Information Pertaining to Weapons of Mass
Destruction That is Properly Classified Pursuant to Section 1.4(h) of
Section 1.4(h) of the Executive Order permits the classification of information pertaining
to the development, production, or use of weapons of mass destruction. Such information has
been withheld in two documents, and concerns the United States ability to assess and counter
foreign nuclear programs, as well as other issues related to national security concerns involving
weapons of mass destruction. Leatherwood Decl. 21. As Director Leatherwood explains,
[r]elease of this information would indicate to our adversaries the extent to which the United
States recognizes the strengths and/or weaknesses of foreign nuclear programs and/or abilities,
and would permit those adversaries to either seek to rectify any identified weaknesses, or
engage in countermeasures in order to reduce the United States ability to effectively monitor
these foreign nuclear programs and/or abilities. Id. Director Leatherwood has determined
release of this information concerning weapons of mass destruction could reasonably be
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expected to cause exceptionally grave damage to national security. Id. It is, therefore, properly
classified Top Secret and subject to FOIA Exemption 1. 5 U.S.C. 552(b)(1).
B. Defendant Properly Withheld Information Pursuant to FOIA Exemption 3
Defendant has also withheld information pursuant to FOIA Exemption 3, including
information also withheld as classified pursuant to Exemption 1. As this Circuit has recognized,
agencies may invoke the exemptions independently and courts may uphold agency action under
one exemption without considering the applicability of the other. Larson, 565 F.3d at 862-63.
Exemption 3 protects from disclosure information that is protected by a separate statute,
provided that such statute requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or establishes particular criteria for withholding or refers
to particular types of matters to be withheld. 5 U.S.C. 552(b)(3).1 The purpose of
Exemption 3 [is] to assure that Congress, not the agency, makes the basic nondisclosure
decision. Assn of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir.
1987).
Courts apply a two-pronged inquiry when evaluating an agencys invocation of
Exemption 3. See Sims, 471 U.S. at 167-68. First, the court must determine whether the statute
identified by the agency qualifies as an exempting statute under Exemption 3. Second, the court
should consider whether the withheld material falls within the scope of the exempting statute.
See id. As the D.C. Circuit has recognized, Exemption 3 presents considerations distinct and
apart from the other eight exemptions. Assn of Retired R.R. Workers, 830 F.2d at 336. [I]ts
1
The relevant section of the FOIA statute setting forth Exemption 3 was amended five years ago to
specify that statutes enacted after the date of enactment of the OPEN FOIA Act of 2009 must
specifically cite to the appropriate section of FOIA to qualify as withholding statutes pursuant to
Exemption 3. See 5 U.S.C. 552(b)(3)(B) (added by OPEN FOIA Act of 2009, Pub. L. No. 111-83, tit.
V, 564, 123 Stat. 2184 (2009)). Here, the statutes invoked by government were enacted well before the
date of that amendment.
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applicability depends less on the detailed factual contents of specific documents; the sole issue
for decision is the existence of a relevant statute and the inclusion of withheld material within the
statutes coverage. Id. (quoting Goland, 607 F.2d at 350). DIA has withheld information
pursuant to two Exemption 3 statutes here.
First, DIA invokes 10 U.S.C. 424 as an Exemption 3 statute. The statute provides that:
(a) Exemption from disclosure.--Except as required by the President or as
provided in subsection (c), no provision of law shall be construed to require the
disclosure of-(1) the organization or any function of an organization of the Department
of Defense named in subsection (b); or
(2) the number of persons employed by or assigned or detailed to any
such organization or the name, official title, occupational series, grade, or
salary of any such person.
10 U.S.C. 424. DIA is among three organizations listed in 10 U.S.C. 424(b), and the statute
plainly qualifies as Exemption 3 authority. See, e.g., Miller v. Dept of Justice, 562 F. Supp. 2d
82, 112 (D.D.C. 2008) (applying 10 U.S.C. 424 to Exemption 3 and upholding withholding of
documents); Larson v. Dept of State, Civ. No. 02-1937 (PLF), 2005 WL 3276303, at * 15
(D.D.C. Aug. 10, 2005) (same). DIA determined that information contained within some of the
responsive records here is exempt under 424. DIA thus properly withheld the names, office
affiliations, contact information, and titles of DIA personnel, as well as functions of DIA, given
that the release of such information would identify DIA employees, and would also reveal part
of the Agencys organizational structure, as well as sensitive DIA functions. Williams Decl.
18.
DIA also invokes Section 102A(i)(1) of the National Security Act of 1947, as amended,
as justification for its protection of information pertaining to intelligence sources and methods.
Williams Decl. 19. That provision states that the Director of National Intelligence shall
protect intelligence sources and methods from unauthorized disclosure. 50 U.S.C. 403-16-
1(i)(1).2 That statute qualifies as a withholding statute under FOIA Exemption 3, see, e.g.,
ACLU v. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011), and the Supreme Court has
recognized the wide-ranging authority provided by the National Security Act, entrusting the
agency to weigh the variety of complex and subtle factors in determining whether disclosure of
information may lead to an unacceptable risk of compromising the Agencys intelligencegathering process. Sims, 471 U.S. at 180. Indeed, rather than place any limit on the scope of
the National Security Act, Congress simply and pointedly protected all sources of intelligence
that provide, or are engaged to provide, information the Agency needs to perform its statutory
duties with respect to foreign intelligence. Id. at 169-70. For the same reasons, DIA must
invoke the protective shield of the National Security Act to protect information pertaining to
intelligence sources and methods in all the responsive records. See Williams Decl. 20; accord
Leatherwood Decl. 13-15.
Notably, the mandate to withhold information pursuant to the National Security Act is
broader than the authority to withhold information pursuant to FOIA exemption 1 and Executive
Order 13,526. Cf. Gardels, 689 F.2d at 1107 (noting that the executive order governing
classification of documents was not designed to incorporate into its coverage the CIAs full
statutory power to protect all of its intelligence sources and methods). This is because, unlike
section 1.1(a)(4) of E.O. 13,526, the National Security Act does not require NSA to determine
that the disclosure of the information would be expected to result in damage to the national
2
While the text of the statute speaks of the Director of National Intelligence or, prior to 2004, of the
Director of Central Intelligence, see 50 U.S.C. 403-3(c)(7) (2001) the Government has long taken the
position that any member of the intelligence community may assert the National Security Act to protect
intelligence sources and methods, and courts have regularly upheld other agencies assertions of that Act
in support of Exemption 3 withholdings, including those of DIA. See, e.g., Sack v. CIA, --- F.Supp.2d ---, Civ. No. 12-244 (EGS), 2014 WL 3375568, *11-*12 (D.D.C. July 10, 2014) (DIA); Larson v. Dept of
State, 565 F.3d 857, 86869 (D.C. Cir. 2009) (National Security Agency); Krikorian v. Dept of State,
984 F.2d 461, 46566 (D.C. Cir. 1993) (Department of State); Schoenman v. FBI, 763 F. Supp. 2d 173,
193 n.12 (D.D.C. 2011) (DOJ on behalf of FBI).
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security. Compare 50 U.S.C. 403-1(i)(1), with E.O. 13,526 1.1(a)(4); see also
Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 n.3 (D.C. Cir. 2003) (Because
we conclude that the Agency easily establishes that the records . . . are exempt from disclosure
under Exemption 3, we do not consider the applicability of Exemption 1.). Congress has
already made that determination by enacting these statutes. See Hayden v. NSA, 608 F.2d 1381,
1390 (D.C. Cir. 1979).
C. Defendant Properly Withheld Information Subject to the Deliberative Process
Privilege Pursuant to Exemption 5.
Defendant withheld information in some records pursuant to FOIA Exemption 5, which
protects from disclosure inter-agency or intra-agency memorandums or letters which would not
be available by law to a party . . . in litigation with the agency. 5 U.S.C. 552(b)(5). Records
are exempt from disclosure if they would be normally privileged in the civil discovery context.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Exemption 5 thus incorporates the
protections that are available to an agency in civil litigation, including the deliberative process
privilege. See Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).
The deliberative process privilege applies to decisionmaking of executive officials
generally, and protects documents containing deliberations that are part of the process by which
government decisions are formulated. In re Sealed Case, 121 F.3d 729, 737, 745 (D.C. Cir.
1997). The purpose of the deliberative process privilege is to prevent injury to the quality of
agency decisions, Sears, Roebuck & Co., 421 U.S. at 151, by encouraging full and frank
discussion of legal and policy matters within the government, preventing premature disclosure of
proposed policies, and avoiding public confusion that may result from disclosure of rationales
that were not ultimately grounds for agency action. See Mapother v. Dept of Justice, 3 F.3d
1533, 1537 (D.C. Cir. 1993); Russell v. Dept of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir.
-18-
1982) (en banc). The deliberative process privilege rests on the obvious realization that officials
will not communicate candidly among themselves if each remark is a potential item of discovery
and front page news, and its object is to enhance the quality of agency decision by protecting
open and frank discussion among those who make them within the Government. See Dept of
Interior v. Klamath Water Users Prot. Assn, 532 U.S. 1, 8-9 (2001) (internal citations and
quotations omitted).
The deliberative process privilege shields government materials that are (1) predecisional
and (2) deliberative. See Tax Analysts, 117 F.3d at 616. A document is predecisional if it was
generated before the adoption of an agency policy and it is deliberative if it reflects the giveand-take of the consultative process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980). To show that a document is predecisional, the agency need not
identify a specific final agency decision; rather, it is sufficient to establish what deliberative
process is involved, and the role played by the documents in issue in the course of that process.
Heggestad v. Dept of Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States, 617
F.2d at 868). The privilege therefore applies broadly to recommendations, draft documents,
proposals, suggestions, and other subjective documents which reflect the personal opinions of the
writer rather than the policy of the agency. Coastal States, 617 F.2d at 866.
DIA has withheld deliberative process privileged information from 111 of the 112
responsive documents all but the damage assessment itself. Williams Decl. 22. As Ms.
Williams testifies:
All 111 records were created in an attempt to assess the impact of the
unauthorized disclosure of the classified information by former NSA contractor,
Edward Snowden, and supply a recommendation on any future action that may
necessary to remedy any damage that may have occurred as a result of Snowdens
actions. These documents contain recommendations and comments regarding the
impact assessment which were originated from employees working within various
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components of DIA and other government employees working as part of the DOD
Information Review Take Force. Accordingly, these documents are
predecisional because they were created prior to any decision or decisions on
actions to remedy damage resulting from the leaks by Edward Snowden. They
are deliberative because, as noted, they contain discussions and
recommendations regarding immediate action to be taken to alleviate the effects
of sensitive information already made available to the public, as well as potential
action to be taken to alleviate any possible damage that future release of sensitive
information may have. Release of this information would expose the
Governments decision making process in such a way that would discourage
future discussion and undermine the United States ability to rectify or mitigate
any damage caused by the disclosure of sensitive information.
Id. Thus, because these documents reflect internal deliberations on the advisability of a[]
particular course of action, they are deliberative and exempt from FOIA disclosure. Public
Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 875 (D.C. Cir. 2009); see 5 U.S.C.
552(b)(5).
D. Defendant Properly Withheld Individuals Personal Information Pursuant to
FOIA Exemption 6.
FOIA Exemption 6 protects 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). The Supreme Court has adopted a broad construction of the privacy interests
protected by Exemption 6. In Dept of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749, 763 (1989), the Court rejected a cramped notion of personal privacy under the
FOIAs exemptions and instead emphasized that privacy encompass[es] the individuals control
of information concerning his or her person. More specifically, the Court noted that [p]rivacy
is the claim of individuals . . . to determine for themselves when, how, and to what extent
information about them is communicated to others. Id. at 764 n.16 (citation omitted). Privacy
is of particular importance in the FOIA context because a disclosure required by the FOIA is a
disclosure to the public at large. See Painting & Drywall Work Preservation Fund, Inc. v. HUD,
-20-
936 F.2d 1300, 1302 (D.C. Cir. 1991) (finding that if information must be released to one
requester, it must be released to all, regardless of the uses to which it might be put).
Exemption 6 requires an agency to balance the individuals right to privacy against the
publics interest in disclosure. See Rose, 425 U.S. at 372. The agency must determine whether
disclosure of the information threatens a protectable privacy interest; if so, the agency must
weigh that privacy interest against the public interest in disclosure, if any. See Reed v. NLRB,
927 F.2d 1249, 1251 (D.C. Cir. 1991). The only relevant public interest to be weighed in this
balance is the extent to which disclosure would serve the core purpose of FOIA, which is
contribut[ing] significantly to public understanding of the operations or activities of the
government. Dept of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)
(emphasis as in Fed. Labor Relations Auth.; internal citation and quotation marks omitted).
Plaintiff bears the burden of demonstrating that the release of the withheld documents would
serve this interest. See Carter v. Dept of Commerce, 830 F.2d 388, 391-92 nn. 8 & 13 (D.C.
Cir. 1987).
Pursuant to this exemption, DIA withheld point of contact information of DIA
employees and employees of other government agencies including the names, phone numbers,
and email addresses of personnel within the Intelligence Community. Williams Decl. 23. The
agency also withheld personal information relating to individuals and their families. Id. DIA
staff weighed the privacy interest of the individual employees against the public interest in
disclosure of this personal information. Id. Thus, the DIA found that there is no public interest
in the limited information subject to Exemption 6, but significant privacy interests of the affected
individuals, who are associated with the Intelligence Community or a particular incident within
-21-
an intelligence agency, and therefore, could be expected to face unwanted contact or harassment
if their personal information is disclosed. Id.
The reviewing officials struck an appropriate balance in weighing these interests. The
general nature of intelligence personnels work implicates a strong privacy interest, as it is wellestablished that government officials have a legitimate interest in preserving the secrecy of
matters that conceivably could subject them to annoyance or harassment in either their official or
private lives. Baez v. Dept of Justice, 647 F.2d 1328, 1339 (D.C. Cir. 1980); Lesar v. Dept of
Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (same). This interest is only stronger for personnel
involved in foreign intelligence operations, when disclosure of identities could have
consequences far graver than annoyance and harassment. Furthermore, no meaningful public
interest is served by disclosing information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an agencys own conduct. Reporters
Comm., 489 U.S. at 773. For example, in Voinche v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996),
the FBI relied on Exemption 6 to withhold certain information that would have identified certain
special agents of the FBI and other federal employees. Finding no reason to believe that the
public [would] obtain a better understanding of the workings of various agencies by learning the
identities of the individuals to whom the information pertained, the court held that the release of
the information would serve no articulable public interest. Id. This Court should similarly
uphold the application of Exemption 6 here to protect the privacy interests of Intelligence
Community employees.
E. Defendant has Released All Non-Exempt, Reasonably Segregable Portions of the
Responsive Documents.
FOIA provides that [a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt under this
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subsection. 5 U.S.C. 552(b)(9). This provision does not require disclosure of records in
which the non-exempt information that remains is meaningless. See, e.g., Natl Sec. Archive
Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220-21 (D.D.C. 2005) (concluding that no reasonably
segregable information exists because the non-exempt information would produce only
incomplete, fragmented, unintelligible sentences composed of isolated, meaningless words.).
The question of segregability is by necessity subjective and context-specific, turning upon the
nature of the document in question and the information contained therein. An agency need not,
for instance, commit significant time and resources to the separation of disjointed words,
phrases, or even sentences which taken separately or together have minimal or no information
content. Schoenman v. FBI, 763 F. Supp. 2d. 173, 202 (D.D.C. 2011) (quoting Mead Data v.
Dept of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977)).
The Government has reviewed the withheld material and disclosed all non-exempt
information that reasonably could be disclosed. See Williams Decl. 24-25, Leatherwood
Decl. 22-23. Accordingly, defendant has produced all reasonably segregable portion[s] of
the responsive records. 5 U.S.C. 552(b). See, e.g., Loving v. Dept of Def., 496 F. Supp. 2d
101, 110 (D.D.C. 2007) (holding that governments declaration and supporting material are
sufficient to satisfy its burden to show with reasonable specificity why the document cannot be
further segregated, where declaration averred that agency had released to plaintiff all material
that could be reasonably segregated) (quoting Johnson v. Exec. Office for U.S. Attorneys, 310
F.3d 771, 776 (D.C. Cir. 2002)).
F. Defendants Search for Responsive Records Satisfies FOIA.
Defendant is also entitled to summary judgment on the adequacy of its search for any
records responsive to plaintiffs request. As noted, an agency can show that it discharged its
-23-
obligations under FOIA and is entitled to summary judgment by submitting declarations that
demonstrate that it has conducted a search reasonably calculated to uncover all relevant
documents. Weisberg, 745 F.2d at 1485 (citations and internal quotations omitted). There is
no requirement that an agency search every record system. Oglesby, 920 F.2d at 68. Moreover,
a failure to uncover a responsive document does not render the search inadequate; the issue to
be resolved is not whether there might exist any . . . documents possibly responsive to the
request, but rather whether the search for those documents was adequate. Weisberg, 745 F.2d at
1485 (citation omitted); see also Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)
(search is not presumed unreasonable simply because it fails to produce all relevant material);
Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (agency need not demonstrate that all
responsive documents were found and that no other relevant documents could possibly exist).
Conducting a reasonable search is a process that requires both systemic and case-specific
exercises of discretion and administrative judgment and expertise and is hardly an area in
which the courts should attempt to micro manage the executive branch. Schrecker v. Dept of
Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (quoting Johnson v. Exec. Office for U.S. Attorneys,
310 F.3d 771, 776 (D.C. Cir. 2002)).
In evaluating the adequacy of a search, courts accord agency affidavits a presumption of
good faith which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (citation and internal quotation marks omitted); see also Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (same). Declarations should be sufficiently detailed,
but [t]he standard . . . is not meticulous documentation [of] the details of an epic search. Tex.
Indep. Producers Legal Action Assn v. IRS, 605 F. Supp. 538, 547 (D.D.C. 1984) (quoting
-24-
Perry, 684 F.2d at 127), affd in part, revd in part on other grounds, 802 F.2d 1483 (D.C. Cir.
1986). To establish the sufficiency of its search, the agencys affidavits therefore need only
explain the scope and method of the search in reasonable detail. Kidd v. Dept of Justice,
362 F. Supp. 2d 291, 295 (D.D.C. 2005) (quoting Perry, 684 F.2d at 127). The agency is not
required to search every record system, but need only search those systems in which it believes
responsive records are likely to be located. See W. Ctr. for Journalism v. IRS, 116 F. Supp. 2d 1,
9 (D.D.C. 2000); Roberts v. Dept of Justice, No. 92-1707, 1995 WL 356320, at *1 (D.D.C. Jan.
29, 1993).
The description of defendants search for responsive records in Ms. Williams declaration
plainly meets these standards. As Ms. Williams explains, all records responsive to plaintiffs
FOIA request the damage assessment itself and any records referencing the damage assessment
were required to be maintained in, and therefore could reasonably be expected to be found only
in, the compartmented files of the Directorate of Operations Task Force. Williams Decl. 810. The Task Forces records officer and technical lead conducted a thorough search of those
records for the damage assessment, which he located, and any records referencing the damage
assessment, of which he located 111. Id. 10. The records officer examined all of the Task
Forces files to ensure he uncovered every document responsive to plaintiffs request. Id.
Defendants search for responsive records was reasonable and adequate under FOIA.
Defendant is, therefore, entitled to summary judgment on the adequacy of its search. See, e.g.,
Weisberg, 745 F.2d at 1485.
G. Plaintiffs Claim as to the Timeliness of Defendants Response is Moot.
Plaintiffs Complaint includes allegations that defendant failed to comply with the time
limits of the FOIA. See Compl. 22, 24, 27-28. When, as here, a requester alleges that an
-25-
agency has failed to issue a timely response, and the agency later responds and produces the
nonexempt records, claims regarding the timeliness of the response are moot. See Tijerina v.
Walters, 821 F.2d 789, 799 (D.C. Cir. 1987); Perry, 684 F.2d 121, 125 (D.C. Cir. 1982). Since
Defendants have responded to plaintiffs request, any claims concerning the timeliness of that
response are, accordingly, moot. Id.
CONCLUSION
For all of the foregoing reasons, the Court should grant defendants Motion for Summary
Judgment.
Dated February 9, 2014
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RONALD C. MACHEN
United States Attorney
ELIZABETH J. SHAPIRO
Deputy Branch Director
/s/ Steven Y. Bressler
STEVEN Y. BRESSLER
Senior Counsel
U.S. Department of Justice, Civil Division
Ben Franklin Station, P.O. Box 833
Washington, D.C. 20044
(202) 305-0167
Steven.Bressler@usdoj.gov
Counsel for Defendant
-26-

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Case 1:14-cv-00197-TSC Document 13-1 Filed 02/09/15 Page 1 of 35

UNITED STATES DISTRICT COURT

Case No. 1:14-cv-00197-TSC

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS

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7. DIA Has Properly Withheld Information Pertaining to Scientific and

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ACLU v. Dep't of Defense,

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Dep't of Justice v. Reporters Committee for Freedom of the Press,

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Larson v. Dep't of State,

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Painting & Drywall Work Preservation Fund, Inc. v. HUD,

SafeCard Servs., Inc. v. SEC,

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Valencia-Lucena v. U.S. Coast Guard,

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Special Considerations in National Security Cases

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determination, courts nonetheless defer to an agencys determination in the national security

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Defendant is Entitled to Summary Judgment.

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5. DIA Has Properly Withheld Information Pertaining to Intelligence

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6. DIA Properly Withheld Information Relating to the United States

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