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Johnson v. Central Intelligence Agency

United States District Court, D. Massachusetts

September 17, 2018

AMANDA JOHNSON, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JUDITH GAIL DEIN, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The Plaintiff, Dr. Amanda Johnson, brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel disclosure of three sets of documents held by the Defendant, the Central Intelligence Agency (the “Agency”), pertaining to the Agency's Twitter account. This matter is presently before the Court on “Defendant's Motion for Summary Judgment” (Docket No. 23) (the “Motion”). The Agency argues that summary judgment is appropriate because it has conducted a reasonable search for the requested documents and has properly withheld certain information under the FOIA exemptions provided by 5 U.S.C. §§ 552 (b)(3), (b)(5) and (b)(6).[1] Dr. Johnson opposes the Motion, arguing that the search was inadequate and that the alleged exemptions do not apply.

         After careful consideration of the parties' written and oral arguments, the Motion is hereby DENIED. First, while the search was reasonable in some respects, the Agency was unreasonable in limiting its search related to the second request to one Agency department and in failing to search for the document sought in the third request. Next, while the Agency correctly applied Exemption (b)(3), it improperly asserted Exemption (b)(5) and Exemption (b)(6). The parties are ordered to meet and confer regarding additional productions in accordance with this Order. The parties shall file a joint status report within 21 days of the date of this Order.

         II. STATEMENT OF FACTS [2]

The FOIA Requests

         The Plaintiff in this case is Dr. Amanda Johnson, who, at the time she filed the relevant FOIA request, was a PhD candidate at the Massachusetts Institute of Technology and a Research Affiliate at Harvard University. FOIA Request at 1. On December 19, 2014, Dr. Johnson submitted a FOIA request seeking three sets of records related to the Agency's use of the social media platform Twitter. DF ¶ 1; PF ¶ 1. Dr. Johnson studies the government's use of social media and submitted the FOIA request for the purpose of using Agency documents in a research article. FOIA Request at 1. The requests were as follows:

1. A copy of any electronic or written communication, including emails and email attachments, discussing the CIA's public-facing Twitter account, @CIA, sent between Twitter, Inc. or a representative thereof, and any employee in the CIA's Office of Public Affairs. The request is meant to include both records sent from Twitter to CIA personnel as well as records sent from CIA personnel to Twitter. This correspondence would exist, as it is a necessary component of the process by which Twitter certifies certain accounts as “verified, ” and the CIA has a verified Twitter account. CIA Director of Public Affairs Dean Boyd discussed the CIA's use of this verified, public-facing Twitter account on the CBS News story available at http://www.cbsnews.com/news/cia-twitter-account-an-inside-look-cia/.
2. A copy of any documents or materials, including but not limited to, guides, manuals, handbooks, policies, or presentations used to instruct or train agency personnel in the use of the agency's public-facing Twitter account, @CIA. This request includes any documents that speak to the style or tone that agency personnel are directed to adopt in their use of this account.
3. The list of user applications connected to the CIA's public-facing Twitter account, @CIA. This record is stored on the @CIA Twitter account web-page and can be accessed by logging into the account, clicking on the user icon in the top right corner, selecting “Settings, ” and then selecting “Apps.” It can also be accessed by logging into the account and navigating to the following web address: http://twitter.com/settings/applications.

Id. Dr. Johnson limited her requests to records created between August 1, 2012 and the date the request was processed. Id.

         On May 4, 2017, Dr. Johnson filed this action for injunctive relief, complaining that the Agency had not responded to her December 2014 request. Docket No. 1. During the course of pretrial proceedings, the parties met and conferred in an attempt to resolve, or narrow, their dispute. The Agency eventually responded to the FOIA request with the production of eighteen documents, a substantial portion of which were redacted. Joint Status Report at 2. Dr. Johnson, through counsel, responded to the production raising various concerns about the sufficiency of the search and of the production. PF ¶ 3. The Agency declined to conduct any additional searches and elected to proceed with its motion for summary judgment. Sellars Decl. ¶ 14.

         The Agency's Search for Documents

         As is customary in FOIA cases, the Agency has submitted an Affidavit with its Motion detailing the parameters of its search and the reasons for withholding any relevant information.[3] The Affidavit was executed by Antoinette B. Shiner, the Agency's Litigation Information Review Officer. Shiner Decl. ¶ 2. Therein, Ms. Shiner explains that in processing Dr. Johnson's three requests, officials from the Agency's Information Management Services (“IMS”) office, the department that receives FOIA requests, worked with the Office of the General Counsel (“OGC”) to develop a search strategy. Id. ¶ 9. They worked to identify the offices and persons within the Agency who would have responsive documents. Id. Ms. Shiner declares that based on those efforts, the Agency determined that the Office of Public Affairs (“OPA”) “would be the only Agency office reasonably likely to possess records responsive to Plaintiff's request.” Id.[4] She explains that OPA is the office responsible for communicating with outside audiences as well as for managing the Agency's web and social media presence. Id. As such, OPA is “the only office within [the Agency] authorized to access the @CIA Twitter account [and the] OPA Web Team maintains control over content shared via the Agency's social media, and communications with social media platforms for the purposes of account maintenance and verification.” Id.

         Within OPA, the Agency looked for responsive documents by enlisting search terms and custodians to narrow the search. Id. ¶ 10. Agency personnel first used variations of search terms such as “Twitter, ” “guides, ” “manuals, ” “policies, ” and “OPA.” Id. In response to the large volume of non-responsive documents which contained those search terms, IMS worked with OPA to narrow the search further by custodian, identifying the specific Agency personnel responsible for maintaining the Twitter account and running the search terms through those accounts. Id. ¶ 10; Supp. Shiner Decl. ¶ 4.

         The Agency's Affidavit also addressed two concerns that Dr. Johnson had raised regarding the search. First, it explained that the search did not produce a “verification email” or similar communication, as referenced in Dr. Johnson's first request, because verification of the Twitter account was completed via telephone. Shiner Decl. ¶ 13. Second, in response to Dr. Johnson's contention that documents responsive to the second request would exist in the records of the Publications Review Board (“PRB”), among other places, the Agency explained its position that the PRB is only responsible for ensuring that classified information is not improperly disclosed and, as such, the Agency contends that it would not be the correct location to search for the training materials sought. Id. ¶ 14.

         The search was completed on June 26, 2017, and the Agency produced eighteen records in response to Dr. Johnson's first and second requests. Id. ¶¶ 8, 11. No records were produced in response to the third request. Supp. Shiner Decl. ¶ 5. After the Plaintiff challenged the cutoff date the Agency had used for the production, the Agency acknowledged its error and produced a few more documents. Id. ¶¶ 6, 7. Portions of the production were redacted to withhold information. The Agency claims the redactions are appropriate under Exemptions (b)(3), (b)(5), and (b)(6). Shiner Decl. ¶¶ 15-23. Pursuant to Exemption (b)(3), which allows an agency to withhold information if expressly permitted by another statute, the Agency redacted the titles, names, functions, and organizational information of Agency employees. Id. ¶¶ 15-18. Pursuant to Exemption (b)(5), which allows for withholding of privileged information, the Agency redacted one document over which it claims the deliberative process privilege. Id. ¶¶ 19-20. Pursuant to Exemption (b)(6), which allows for the withholding of certain personal information, the Agency redacted the names, email addresses, and job titles of employees at both the Agency and at Twitter. Id. ¶¶ 21-23. The Agency has provided explanations for its withholdings both in the Shiner Declaration as well as in a “Vaughn Index” attached to its memorandum. (Docket No. 24-2).[5] Subsequent briefing following oral argument on the Motion further explained the Agency's reasons for withholding some documents. See Docket Nos. 45, 51.

         Additional facts will be provided below where appropriate.

         III. ANALYSIS

         A. Summary Judgment Standard of Review for FOIA Requests

         “The role of summary judgment is ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” PC Interiors, Ltd. v. J. Tucci Constr. Co., 794 F.Supp.2d 274, 275 (D. Mass. 2011) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). The burden is upon the moving party to show, based upon the discovery and disclosed materials on file, and any affidavits, “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). Material facts are those that “possess[] the capacity to sway the outcome of the litigation under the applicable law[, ]” and there is a genuine dispute where an issue “may reasonably be resolved in favor of either party.” Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (internal quotations and citations omitted). The Court must “review the material presented in the light most favorable to the non-movant, and [] must indulge all inferences favorable to that party.” Petitti v. N.E. Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir. 1990) (internal quotations and citation omitted).

         When a properly supported motion for summary judgment is made, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (internal quotations and citation omitted). The non-moving party can then avoid summary judgment only by providing properly supported evidence of disputed material facts. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). A party may not rely on “conclusory allegations, improbable inferences, [or] unsupported speculation” to overcome a motion for summary judgment. Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir. 1994) (internal quotations and citation omitted).

         In the context of a FOIA request, summary judgment should be granted to a producing agency “when the agency proves that it has fully discharged its obligations under the FOIA after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Moffat v. U.S. Dep't of Justice, Civil Action No. 09-12067-DJC, 2011 WL 3475440, at *1 (D. Mass. Aug. 5, 2011) (internal quotations and citations omitted). “An agency fully discharges its burden when it proves that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the FOIA's inspection requirements.” Id. (internal quotations and citations omitted). “Summary judgment in FOIA cases may be granted solely on the basis of agency affidavits.” Id. (internal quotations and citations omitted).

         B. Reasonableness of the Agency's Search

         The Agency first contends that it is entitled to summary judgment because the undisputed facts establish that its search was reasonable. As a result, it argues, it should not be required to search for other responsive documents. Dr. Johnson challenges both the sufficiency of the Agency's Affidavits, and the scope of the Agency's search. In addition, the parties dispute whether requiring the Agency to locate and produce a computer-generated document by following express access instructions is required by the FOIA. For the reasons detailed herein, this Court concludes that while the Agency's Affidavit is sufficient, the scope of the search was inadequate in various respects. Moreover, the Agency is required to access and produce the identified computer-generated document.

         1. The Agency's Obligation to Search

         In order to carry its burden of showing that it has met its obligation to conduct an adequate search, the Agency “must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (internal quotations and citation omitted). “Resolution of this claim turns on whether the agency made a good faith, reasonable effort using methods which can be reasonably expected to produce the information requested.” Stalcup v. CIA, 768 F.3d 65, 74 (1st Cir. 2014) (internal quotations and citation omitted). “The crucial issue is not whether relevant documents might exist, but whether the agency's search was reasonably calculated to discover the requested documents.” Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (internal quotations and citation omitted). “After an agency shows that it acted accordingly, which is generally accomplished through an affidavit, a rebuttable presumption that the agency acted in good faith emerges.” Stalcup, 768 F.3d at 74.

         Any affidavit must be detailed, nonconclusory, and submitted by responsible officials. Maynard, 986 F.2d at 559. “A satisfactory agency affidavit should, at a minimum, describe in reasonable detail the scope and method by which the search was conducted.” Id. It should also “describe at least generally the structure of the agency's file system which makes further search difficult.” Id. at 559-60 (quoting Church of Scientology of Cal. v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986)).

         If an agency succeeds in submitting a sufficiently detailed affidavit evidencing a reasonable search, “the FOIA requester can rebut the agency's affidavit only by showing that the agency's search was not made in good faith.” Id. at 560. The presumption “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (internal quotations and citation omitted). On the other hand, if the Agency fails to establish through its affidavits that its search was reasonable, “the FOIA requester may avert summary judgment merely by showing that the agency might have discovered a responsive document had the ...


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