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Case TitleJAMES MADISON PROJECT v. DEPARTMENT OF JUSTICE et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv01307
Date Filed2015-08-12
Date Closed2017-07-26
JudgeJudge Rosemary M. Collyer
PlaintiffJAMES MADISON PROJECT
Case DescriptionThe James Madison Project submitted a FOIA request to the Civil Division at the Department of Justice for records pertaining to the book "No Easy Day," a firsthand account of the death of Osama bin Laden, including analyses of taking legal action against the book's author, Mark Owen. The Civil Division indicated that a number of the records were exempt under Exemption 5 (privilege) and Exemption 7 (law enforcement records). JMP appealed the Civil Division's denial, which was upheld by the Office of Information Policy. JMP also requested records concerning the book from the Executive Office for U.S. Attorneys, the Defense Department, and the CIA. After none of those agencies responded to its request, JMP filed suit.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantDEPARTMENT OF JUSTICE
DefendantDEPARTMENT OF DEFENSE
DefendantCENTRAL INTELLIGENCE AGENCY
DefendantCENTRAL INTELLIGENCE AGENCY
Washington, DC 20505
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [18]
FOIA Project Annotation: Judge Rosemary Collyer has dismissed nearly all the James Madison Project's FOIA claims against a number of agencies for records concerning legal analyses stemming from the release of No Easy Day, a book written by a former Navy Seal using the pseudonym Mark Owen, about the killing of Osama bin Laden. The case provides an interesting glimpse at some of the practical difficulties of suing multiple agencies who separately receive the same identical request, including how to keep track of the status of each agency's processing of the request. The James Madison Project requested legal analyses of Owen's potential liability under any non-disclosure agreement, whether information disclosed in No Easy Day remained classified, any harm assessments made as a result of the disclosure of classified information, and the legal viability of taking action against Owen or his publisher Penguin Group. The request was sent to the Executive Office for U.S. Attorneys, the Civil Division at the Justice Department, the Defense Department, the Navy, the Defense Intelligence Agency, and the CIA over a six-month period in 2014. EOUSA responded that it had searched the U.S. Attorney's Office for the Eastern District of Virginia and found no records. The Civil Division refused to process those parts of the request concerning Owen without his consent. It further withheld any legal analyses under Exemption 5 (privileges). DIA located two documents and referred one to the National Security Agency and the other to the Navy. The NSA told the James Madison Project that disclosure of the article referred to it would violate its subscription service agreement. The James Madison Project subsequently indicated it was not interested in published press reports and agreed not to pursue the NSA claim. The document referred to the Navy was disclosed in full. The rest of the agencies had failed to respond before the James Madison Project filed suit in August 2015. The James Madison Project's first hurtle involved its attempt to resurrect its claims against EOUSA and the Navy. In the case of EOUSA, since the James Madison Project had not appealed its no record response, JMP sent the agency another request. The problem it faced in relation to its request to the Navy turned out to be somewhat more complicated. After JMP filed its complaint, the Navy alleged it had no record of receiving the request. JMP insisted that it had sent the request by fax and that it had received a confirmation page on its end that the fax had been successfully sent. But Collyer indicated that "the fax confirmation page is not sufficient evidence to counter sworn evidence that the Navy has no record of receiving the No Easy Day request at issue." JMP asked Collyer to grant discovery as to why the Navy did not locate its fax request. Rejecting the request, she noted that "plaintiff does not acknowledge that the Navy never sent a letter confirming receipt of the FOIA request and that Plaintiff never inquired about the status of its request before commencing litigation." As a result, Collyer dismissed the Navy since it had not received the request. She then went on to dismiss EOUSA and DIA after finding that both had conducted adequate searches for records. Turning to the response of the Civil Division Collyer approved of its use of a Glomar response neither confirming nor denying the existence of records, as to those portions of the request pertaining to Owen. JMP argued Owen's public notoriety diminished his privacy interest. Collyer, however, explained that "Mr. Owen's privacy interests in protecting his law enforcement records from disclosure to third parties is not overcome by any public interest and the Civil Division properly withheld records related to [those portions pertaining to Owen]." JMP argued that the Civil Division's categorical descriptions of records the agency claimed were privileged under Exemption 5 was analogous to the "no, number, no list" descriptions that had been criticized by both the D.C. Circuit and the Second Circuit. Collyer rejected the claim, pointing out that "the specificity of Plaintiff's request itself identifies 'whether the contentsâ€"as distinguished from the existenceâ€"of the officially acknowledged records may be protected from disclosure. . .' The contents were legal analyses of the topics to which the FOIA request was directed and [the agency] described the contents of the records in [its] declaration. In contrast, a 'no number, no list' response declines to describe or enumerate the 'number, types, dates, or other descriptive information about the responsive records.'" A rarely litigated provision from the 1996 EFOIA amendments requiring agencies to identify the volume of records withheld became an issue in this case. JMP challenged the Civil Division's contention that identifying the volume of records pertaining to the various subsections of JMP's request would reveal privileged information because it would indicate the relative importance DOJ assigned to each issue. Collyer agreed with the agency, noting that "having asked for records concerning three separate issuesâ€"legal analyses and assessments of how much of No Easy Day remained classified; how much damage or harm might result to the U.S. as a result; and how vulnerable to suit was the book's publisherâ€"the number of records individually responsive to each request could distinctly reveal the emphases (or lack thereof) given to each topic during the lawyers' analyses and assessments." JMP challenged the CIA's search as well as its exemption claims. Finding nothing wrong with the agency's search, Collyer turned to the exemptions. JMP said it was surprised that there would be classified information in records responsive to its FOIA request for legal analyses. But Collyer observed that "this is not surprising. Osama bin Laden was in Afghanistan and it took years of effort to pinpoint his location. Divulging the particulars of how that accomplished could reasonably harm the United States." JMP argued the agency had failed to show that records it withheld under Exemption 5 were both predecisional and deliberative. Collyer pointed out that "the [agency's] declaration is extremely clear that the records are drafts used in pre-decisional discussions; draft records have routinely been protected from FOIA using the deliberative process privilege." The only agency that failed to satisfy Collyer concerning its processing of JMP's request was the Department of Defense. She explained that "DoD has not even indicated that a search was conducted, but instead attempts a Glomar response that all records that might be located would be exempt under Exemption 5 or 6." Noting that "DoD's categorical use of [Exemptions 5 and 6 is] inappropriate," Collyer noted that "DoD cannot know, without searching whether some of its responsive records may contain segregable, non-exempt information. . ." She added that "DoD does not argue that all documents responsive to Plaintiff's No Easy Day request would contain personally identifying information of DoD personnel and in fact, without searching, DoD cannot aver that any responsive documents contain such information. DoD's categorical use of Exemption 5 and 6 are insufficient responses to Plaintiff's No Easy Day request."
Issues: Exemption 1 - Harm to national security, Exemption 5 - Privileges
Opinion/Order [31]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-08-121COMPLAINT against CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4208291) filed by The James Madison Project. (Attachments: # 1 Civil Cover Sheet, # 2 Summons CIA, # 3 Summons DOD, # 4 Summons DOJ, # 5 Summons USADC, # 6 Summons USAG)(Moss, Bradley) (Entered: 08/12/2015)
2015-08-12Case Assigned to Judge Rosemary M. Collyer. (md) (Entered: 08/13/2015)
2015-08-132SUMMONS (5) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (md) (Entered: 08/13/2015)
2015-09-093RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/24/2015. Answer due for ALL FEDERAL DEFENDANTS by 9/23/2015. (Moss, Bradley) (Entered: 09/09/2015)
2015-09-094NOTICE of Appearance by Mark S. Zaid on behalf of JAMES MADISON PROJECT (Zaid, Mark) (Entered: 09/09/2015)
2015-09-225Consent MOTION for Extension of Time to File Responsive Pleading by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 09/22/2015)
2015-09-22MINUTE ORDER granting 5 Consent Motion for Extension of Time. Defendants shall answer or otherwise respond by October 2, 2015 to Plaintiff's 1 Complaint. Signed by Judge Rosemary M. Collyer on 9/22/2015. (lcrmc3) (Entered: 09/22/2015)
2015-09-22Set/Reset Deadlines/Hearings: Answer or other response to complaint due by 10/2/2015. (cdw) (Entered: 09/23/2015)
2015-10-026ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Parker, Ryan) (Entered: 10/02/2015)
2015-10-06MINUTE ORDER requiring the parties to file a joint proposed dispositive motion briefing schedule by October 21, 2015. Signed by Judge Rosemary M. Collyer on 10/6/2015. (KD) (Entered: 10/06/2015)
2015-10-06Set/Reset Deadlines/Hearings: Joint proposed dispositive motion briefing schedule due by 10/21/2015. (cdw) (Entered: 10/07/2015)
2015-10-217PROPOSED BRIEFING SCHEDULE by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE. (Parker, Ryan) (Entered: 10/21/2015)
2015-10-23MINUTE ORDER adopting 7 Joint Proposed Dispositive Motion Briefing Schedule. Defendants' dispositive motion is due February 4, 2016. Plaintiff will file any opposition by March 7, 2016. Defendants will file any reply by March 17, 2016. Signed by Judge Rosemary M. Collyer on 10/23/2015. (lcrmc3) (Entered: 10/23/2015)
2015-10-23Set/Reset Deadlines/Hearings: Defendants' Dispositive Motion due by 2/4/2016. Response to Dispositive Motions due by 3/7/2016. Reply to Dispositive Motions due by 3/17/2016. (cdw) (Entered: 10/23/2015)
2016-01-298Consent MOTION for Extension of Time to File Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 01/29/2016)
2016-01-29MINUTE ORDER granting 8 Consent Motion for Extension of Time. Defendants' dispositive motion is due February 11, 2016. Plaintiff's opposition is due March 14, 2016. Defendants' reply is due March 24, 2016. Signed by Judge Rosemary M. Collyer on 1/29/2016. (lcrmc3) (Entered: 01/29/2016)
2016-01-29Set/Reset Deadlines: Defendants' Dispositive Motion due by 2/11/2016. Plaintiff's Opposition due by 3/14/2016. Defendants' Reply due by 3/24/2016. (mac) (Entered: 01/29/2016)
2016-02-119MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration from Civil Division, # 2 Declaration from EOUSA, # 3 Declaration from DoD, # 4 Declaration from Navy, # 5 Declaration from DIA, # 6 Declaration from CIA - PartI, # 7 Declaration from CIA Part II, # 8 Vaughn Index from CIA, # 9 Declaration from NSD, # 10 NSA Response Letter)(Parker, Ryan) Modified on 9/16/2016 (zrdj). (Entered: 02/11/2016)
2016-02-2510Unopposed MOTION for Extension of Time to File Opposition to Defendants' Motion for Summary Judgment by JAMES MADISON PROJECT (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 02/25/2016)
2016-02-2511ERRATA to Plaintiff's 10 Unopposed Motion for an Extension of Time to File Opposition to Defendants' Motion for Summary Judgment by JAMES MADISON PROJECT. (Attachments: # 1 Exhibit 1 - Corrected Proposed Order)(Moss, Bradley) Modified on 2/26/2016 (zrdj). (Entered: 02/25/2016)
2016-02-29MINUTE ORDER granting in part and denying in part 10 Unopposed Motion for Extension of Time. The deadline for Plaintiff to oppose Defendants' 9 Motion for Summary Judgment, and for Plaintiff to file a motion for leave to file an amended complaint, is March 24, 2016. The deadline for Defendants to file a reply in support of its 9 Motion for Summary Judgment, and to oppose Plaintiff's motion for leave to file, is April 14, 2016. The deadline for Plaintiff to file a reply in support of its motion for leave to file is April 21, 2016. Signed by Judge Rosemary M. Collyer on 2/29/2016. (lcrmc3) (Entered: 02/29/2016)
2016-02-29Set/Reset Deadlines: Summary judgment motion response and motion for leave to file an amended complaint due 3/24/2016. Reply in support of motion for summary judgment and response to motion for leave to file due 4/14/2016. Reply in support of motion for leave to file due 4/21/2016.(zmm) (Entered: 02/29/2016)
2016-03-2412Memorandum in opposition to re 9 MOTION for Summary Judgment filed by JAMES MADISON PROJECT. (Attachments: # 1 Statement of Facts (Response), # 2 Exhibit "1", # 3 Exhibit "2", # 4 Exhibit "3", # 5 Exhibit "4", # 6 Text of Proposed Order)(Moss, Bradley) (Entered: 03/24/2016)
2016-03-2413MOTION for Leave to File First Amended Complaint by JAMES MADISON PROJECT (Attachments: # 1 Memorandum in Support, # 2 Exhibit "A" (original Complaint), # 3 Exhibit "B" (FAC), # 4 Exhibit "1" (fax confirmation page), # 5 Exhibit "2" (Moss Declaration), # 6 Exhibit "3" (EOUSA request), # 7 Exhibit "4" (Navy request), # 8 Text of Proposed Order)(Moss, Bradley) (Entered: 03/24/2016)
2016-04-1414REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parker, Ryan) (Entered: 04/14/2016)
2016-04-1415Memorandum in opposition to re 13 MOTION for Leave to File First Amended Complaint filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE. (Parker, Ryan) (Entered: 04/14/2016)
2016-04-2116REPLY to opposition to motion re 13 MOTION for Leave to File First Amended Complaint filed by JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 04/21/2016)
2016-06-0317NOTICE of New Information by JAMES MADISON PROJECT (Moss, Bradley) (Entered: 06/03/2016)
2016-09-2218MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/22/2016. (DAS) (Entered: 09/22/2016)
2016-09-2219ORDER. Defendants' 9 Motion for Summary Judgment is granted in part and denied in part without prejudice. Plaintiff's 13 Motion for Leave to File Amended Complaint is denied. Judgment is entered in favor of Defendants on Counts One, Two, Four, Five, and Six. Count Three against Department of Defense remains. Signed by Judge Rosemary M. Collyer on 9/22/2016. (DAS) (Entered: 09/22/2016)
2017-04-21MINUTE ORDER requiring the Department of Defense to file a status report no later than May 5, 2017. Signed by Judge Rosemary M. Collyer on 4/21/2017. (DAS) (Entered: 04/21/2017)
2017-04-21Set/Reset Deadlines/Hearings: Department of Defense's Status Report due by 5/5/2017 (cdw) (Entered: 04/24/2017)
2017-05-0420MOTION for Summary Judgment on Count Three by DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Parker, Ryan) (Entered: 05/04/2017)
2017-05-0521STATUS REPORT by DEPARTMENT OF DEFENSE. (Parker, Ryan) (Entered: 05/05/2017)
2017-05-1822Memorandum in opposition to re 20 MOTION for Summary Judgment on Count Three filed by JAMES MADISON PROJECT. (Attachments: # 1 Exhibit 1 - Moss Declaration, # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 05/18/2017)
2017-05-2523REPLY to opposition to motion re 20 MOTION for Summary Judgment on Count Three filed by DEPARTMENT OF DEFENSE. (Parker, Ryan) (Entered: 05/25/2017)
2017-06-0224MOTION for Leave to File Sur-Reply in Opposition to Defendant Department of Defense's Renewed Motion for Summary Judgment by JAMES MADISON PROJECT (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 06/02/2017)
2017-06-0225Memorandum in opposition to re 24 MOTION for Leave to File Sur-Reply in Opposition to Defendant Department of Defense's Renewed Motion for Summary Judgment filed by DEPARTMENT OF DEFENSE. (Parker, Ryan) (Entered: 06/02/2017)
2017-06-02MINUTE ORDER granting 24 Motion for Leave to File Surreply. Plaintiff's Surreply shall be filed no later than June 9, 2017 and shall not exceed 5 pages in length. Defendant Department of Defense may file a Sur-Surreply no later than June 16, 2017 not exceeding 5 pages in length. Signed by Judge Rosemary M. Collyer on 6/2/2017. (DAS) (Entered: 06/02/2017)
2017-06-0926SURREPLY to 20 MOTION for Summary Judgment Defendant Department of Defense's Renewed Motion for Summary Judgment filed by JAMES MADISON PROJECT. (Moss, Bradley) Modified to add link on 6/12/2017 (znmw). (Entered: 06/09/2017)
2017-06-1627SURREPLY re 26 to Plaintiff's Surreply filed by DEPARTMENT OF DEFENSE. (Parker, Ryan) Modified event title on 6/19/2017 (znmw). (Entered: 06/16/2017)
2017-06-2128ORDER requiring Defendant Department of Defense to file a supplemental declaration no later than June 30, 2017 and permitting Plaintiff to file a response to the supplemental declaration of no more than 5 pages no later than July 10, 2017. See Order for details. Signed by Judge Rosemary M. Collyer on 6/21/2017. (DAS) (Entered: 06/21/2017)
2017-06-3029NOTICE of Filing Supplemental Declaration by DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration of Mark H. Herrington)(Parker, Ryan) (Entered: 06/30/2017)
2017-07-1030RESPONSE re 29 Notice to Defendant Department of Defense's Notice of Filing Supplemental Declaration filed by JAMES MADISON PROJECT. (Moss, Bradley) Modified even title on 7/11/2017 (znmw). (Entered: 07/10/2017)
2017-07-2531MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 7/25/2017. (DAS) (Entered: 07/25/2017)
2017-07-2532ORDER granting 20 Department of Defense's Renewed Motion for Summary Judgment. Judgment is entered in favor of the Department of Defense on the only remaining count, Count Three. This case is closed. Signed by Judge Rosemary M. Collyer on 7/25/2017. (DAS) (Entered: 07/25/2017)
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by FOIA Project Staff