Case Detail

FOIA Project Annotation: Judge Richard Leon has ruled that Freedom Watch failed to exhaust its administrative remedies when it did not file an administrative appeal with the NSA pertaining to its request for records about the crash of a military helicopter in Afghanistan. Freedom Watch argued that it did not have to appeal the denial because to do so would be futile. But Leon observed that "unfortunately for plaintiff, there is no futility exception to the exhaustion requirement in FOIA cases." He noted that "even assuming, arguendo, that the FOIA exhaustion requirement were subject to a futility exception, Freedom Watch fails to demonstrate the futility of appealing the NSA's decision." He added that "an adverse decision may be 'certain' where, for example, 'an administrative agency lacks, or believes itself to lack, jurisdiction to act upon the dispute.' Here, Freedom Watch does not come close to supporting its contention that an adverse decision by the NSA was certain."
Issues: Litigation - Jurisdiction - Failure to Exhaust

FOIA Project Annotation: Judge Richard Leon has ruled that the CIA and the Department of Defense conducted an adequate search for records concerning the shoot-down of a military helicopter in Afghanistan that resulted in the deaths of 38 individuals. He also agreed that the agencies had properly invoked Exemption 1 (national security), Exemption 3 (other statutes), Exemption 5 (privileges) and Exemption 6 (invasion of privacy) in disclosing more than 535 pages with redactions. Freedom Watch argued the agency's search was insufficient. Leon pointed out, however, that "plaintiff wholly fails to present any evidence rebutting the agency's showing of a good faith search. Rather than provide any facts that create a genuine issue regarding the adequacy of the search, plaintiff asserts without support that it is 'common sense that documents clearly exist' beyond those produced." Freedom Watch questioned the agencies' reliance on keyword searches. Referring to Freedom Watch v. NSA, 783 F.3d 1340 (D.C. Cir. 2015), a recent D.C. Circuit opinion which rejected the identical argument, Leon noted that "agencies routinely rely upon keyword searches to locate responsive electronic documents. Moreover, the searches here encompassed far more than inputting keywords." The Defense Department withheld records concerning discussions of congressional testimony under Exemption 5. Leon approved the redactions, observing that they all "fit comfortably within the exemption." Leon also found the agencies had appropriately considered the segregability of the records. He indicated that a sampling of DOD's redactions "underscore the best efforts used to redact narrowly and only where specific information qualifies for withholding under Exemptions 1, 5, and 6."
Issues: Adequacy - Search, Exemption 1 - Harm to national security, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2014-08-21	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3816491) filed by FREEDOM WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Notice of Designation of Related Civil Cases Pending)(Klayman, Larry) (Entered: 08/21/2014)
2014-08-21		Case Assigned to Judge Richard J. Leon. (sth, ) (Entered: 08/22/2014)
2014-08-22		SUMMONS Not Issued as to CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, NATIONAL SECURITY AGENCY (sth, ) (Entered: 08/22/2014)
2014-08-22	2	STANDING ORDER. Signed by Judge Richard J. Leon on 8/22/2014. (lcrjl1) (Entered: 08/22/2014)
2014-08-22	3	REQUEST FOR SUMMONS TO ISSUE by FREEDOM WATCH, INC. re 1 Complaint filed by FREEDOM WATCH, INC.. Related document: 1 Complaint filed by FREEDOM WATCH, INC.. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(Klayman, Larry) (Entered: 08/22/2014)
2014-08-22	4	SUMMONS (5) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, NATIONAL SECURITY AGENCY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 08/22/2014)
2014-10-06	5	MOTION to Dismiss by NATIONAL SECURITY AGENCY (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Soskin, Eric) (Entered: 10/06/2014)
2014-10-06	6	ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE.(Soskin, Eric) (Entered: 10/06/2014)
2014-10-23	7	Memorandum in opposition to re 5 MOTION to Dismiss filed by FREEDOM WATCH, INC.. (Attachments: # 1 Memorandum in Support)(Klayman, Larry) (Entered: 10/23/2014)
2014-11-03	8	REPLY to opposition to motion re 5 MOTION to Dismiss filed by NATIONAL SECURITY AGENCY. (Soskin, Eric) (Entered: 11/03/2014)
2014-11-11	9	MOTION for Hearing Telephonic Status Conference by FREEDOM WATCH, INC. (Klayman, Larry) (Entered: 11/11/2014)
2014-11-17	10	RESPONSE re 9 MOTION for Hearing Telephonic Status Conference filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, NATIONAL SECURITY AGENCY. (Soskin, Eric) (Entered: 11/17/2014)
2015-01-23	11	MOTION for Partial Summary Judgment by FREEDOM WATCH, INC. (Attachments: # 1 Statement of Facts Statement of Material Facts Not in Dispute, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Text of Proposed Order)(Klayman, Larry) (Entered: 01/23/2015)
2015-01-23	12	MOTION for In-Person Status Conference by FREEDOM WATCH, INC. (Klayman, Larry) (Entered: 01/23/2015)
2015-01-27	13	RESPONSE re 12 MOTION for In-Person Status Conference filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, NATIONAL SECURITY AGENCY. (Soskin, Eric) (Entered: 01/27/2015)
2015-01-27	14	REPLY to opposition to motion re 12 MOTION for In-Person Status Conference filed by FREEDOM WATCH, INC.. (Klayman, Larry) (Entered: 01/27/2015)
2015-02-09		MINUTE ORDER denying 9 Motion for Hearing. It is hereby ORDERED that plaintiff's motion for telephonic status conference is DENIED. Signed by Judge Richard J. Leon on 2/9/2015. (lcrjl1, ) (Entered: 02/09/2015)
2015-02-09		MINUTE ORDER denying 12 Motion. It is hereby ORDERED that plaintiff's request for in-person status conference is DENIED. Signed by Judge Richard J. Leon on 2/9/2015. (lcrjl1, ) (Entered: 02/09/2015)
2015-02-09	15	STATUS REPORT (Joint) by FREEDOM WATCH, INC.. (Attachments: # 1 Text of Proposed Order Stipulated Proposed Order)(Klayman, Larry) (Entered: 02/09/2015)
2015-02-18	16	VACATED PURSUANT TO MINUTE ORDER DATED 12/30/2015.....ORDER denying without prejudice 11 Motion for Partial Summary Judgment. See Order for detail. Signed by Judge Richard J. Leon on 2/15/15. (dot ) Modified on 12/30/2015 (kt). (Entered: 02/18/2015)
2015-03-24	17	MOTION for Order to Show Cause by FREEDOM WATCH, INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Klayman, Larry) (Entered: 03/24/2015)
2015-03-25	18	SUPPLEMENTAL MEMORANDUM to re 17 MOTION for Order to Show Cause filed by FREEDOM WATCH, INC.. (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 03/25/2015)
2015-03-26	19	SUPPLEMENTAL MEMORANDUM to re 17 MOTION for Order to Show Cause filed by FREEDOM WATCH, INC.. (Klayman, Larry) (Entered: 03/26/2015)
2015-03-30	20	RESPONSE re 17 MOTION for Order to Show Cause filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit, # 2 Exhibit)(Soskin, Eric) (Entered: 03/30/2015)
2015-03-30	21	SUPPLEMENTAL MEMORANDUM to re 17 MOTION for Order to Show Cause filed by FREEDOM WATCH, INC.. (Klayman, Larry) (Entered: 03/30/2015)
2015-03-30	22	MOTION to Vacate Scheduling Order, ECF No. 16, by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Soskin, Eric) (Entered: 03/30/2015)
2015-04-01	23	Memorandum in opposition re 22 MOTION to Vacate Scheduling Order, ECF No. 16, filed by FREEDOM WATCH, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Klayman, Larry) Modified event title on 4/2/2015 (znmw, ). (Entered: 04/01/2015)
2015-04-01	24	REPLY to opposition to motion re 17 MOTION for Order to Show Cause filed by FREEDOM WATCH, INC.. (See Docket Entry 23 to view document). (znmw, ) (Entered: 04/02/2015)
2015-05-08	25	STATUS REPORT by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE. (Soskin, Eric) (Entered: 05/08/2015)
2015-05-18	26	RESPONSE To Defendants' 25 Status Report filed by FREEDOM WATCH, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Klayman, Larry) (Entered: 05/18/2015)
2015-06-17	27	NOTICE Request for Status by FREEDOM WATCH, INC. re 19 Supplemental Memorandum, 17 MOTION for Order to Show Cause , 21 Supplemental Memorandum, 18 Supplemental Memorandum (Klayman, Larry) (Entered: 06/17/2015)
2015-07-06	28	SUPPLEMENTAL MEMORANDUM to re 17 MOTION for Order to Show Cause filed by FREEDOM WATCH, INC.. (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 07/06/2015)
2015-09-30	29	MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 09/30/15. (tb) (Entered: 09/30/2015)
2015-09-30	30	ORDER: For the reasons set forth in the accompanying Memorandum Opinion; it is hereby ordered that the defendant's 5 Motion to Dismiss is GRANTED; and it is further ordered that this case be DISMISSED as to defendant NSA. Signed by Judge Richard J. Leon on 09/30/15. (tb) (Entered: 09/30/2015)
2015-11-11	31	STATUS REPORT by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE. (Soskin, Eric) (Entered: 11/11/2015)
2015-12-30		MINUTE ORDER denying 17 Motion for Order to Show Cause, and granting, nunc pro tunc, 22 Motion to Vacate Scheduling Order. It is hereby ORDERED that the Motion for Order to Show Cause is DENIED. It is further ORDERED that the Motion to Vacate Scheduling Order is GRANTED nunc pro tunc, and that the deadlines set forth in this Court's February 18, 2015 Order are VACATED. Signed by Judge Richard J. Leon on 12/30/2015. (lcrjl1, ) (Entered: 12/30/2015)
2016-01-15	32	MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit 1 - Declaration of Mary Wilson, # 2 Exhibit 2 - Declaration of Mark Herrington, # 3 Text of Proposed Order)(Soskin, Eric) (Entered: 01/15/2016)
2016-01-29	33	Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by FREEDOM WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 01/29/2016)
2016-02-03		MINUTE ORDER granting nunc pro tunc 33 Consent Motion for Extension of Time. It hereby ORDERED that the plaintiff has up to and including February 15, 2016, to file a response in opposition to defendant's Motion for Summary Judgment. Signed by Judge Richard J. Leon on 02/03/2016. (lcrjl1, ) (Entered: 02/03/2016)
2016-02-04		Set/Reset Deadlines: Plaintiff's Response to Defendant's Motion for Summary Judgment is due by 2/15/2016. (jth) (Entered: 02/04/2016)
2016-02-15	34	Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by FREEDOM WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 02/15/2016)
2016-02-24		MINUTE ORDER granting nunc pro tunc 34 Consent MOTION for Extension of Time. It hereby ORDERED that the plaintiff has up to and including February 25, 2016, to file a response to the Motion for Summary Judgment filed by defendants Central Intelligence Agency and Department of Defense. Signed by Judge Richard J. Leon on 02/24/2016. (lcrjl1, ) (Entered: 02/24/2016)
2016-02-25		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 2/25/2016. (tb) (Entered: 02/25/2016)
2016-02-25	35	Memorandum in opposition to re 32 MOTION for Summary Judgment of Defendants CIA and DoD filed by FREEDOM WATCH, INC.. (Attachments: # 1 Affidavit Rule 56(d) request for discovery, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Text of Proposed Order)(Klayman, Larry) (Entered: 02/25/2016)
2016-03-07	36	REPLY to opposition to motion re 32 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE. (Soskin, Eric) (Entered: 03/07/2016)
2016-07-07	37	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 7/6/2016. (jth) (Entered: 07/07/2016)
2016-07-07	38	ORDER Granting 32 Defendants' Motion for Summary Judgment; and it is further ORDERED that judgment shall be entered for defendants. SO ORDERED. Signed by Judge Richard J. Leon on 7/6/2016. (jth) (Entered: 07/07/2016)
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