Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the referral of a document by the National Security Agencyâ€"which is subject to FOIAâ€"to the National Security Councilâ€"which is notâ€"does not give EPIC the right to force the NSC to respond to the NSA referral, but she pointedly noted that the NSA is not off the hook and will need to make a release determination concerning the document. Howell noted that "while the NSC is not subject to FOIA requests, the NSA's referral of the FOIA request to the NSC does not relieve the NSA of its continuing obligation to respond to the request. An agency may only properly refer a FOIA request to another agency when doing so does not constitute an improper withholding of agency records. A referral of a FOIA request could be considered a 'withholding' if 'its net effect is to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.' Such a withholding would be 'improper' when it fails to satisfy a reasonableness standard for evaluating agency FOIA procedures. In considering the plaintiff's claims against the NSA, which the defendants have not moved to dismiss, this Court will have an opportunity to evaluate the propriety of the NSA's handling of all documents responsive to the FOIA request, including the document that originated with the NSC." EPIC submitted a FOIA request in June 2009 for documents related to the Comprehensive National Cybersecurity Initiative established by former President George W. Bush in 2008 in National Security Presidential Directive 54, the contents of which have not been made public. The NSA responded in August 2009 by releasing two redacted documents previously released under FOIA. In October, the agency informed EPIC it had found another three documents. The agency withheld two of the documents entirely, but referred the third document to the NSC for "review and direct response" to EPIC. When the NSA failed to respond to EPIC's administrative appeal in a timely manner, the organization filed suit in February 2010. EPIC claimed the NSA had improperly withheld the two documents and improperly referred the third to the NSC. EPIC also filed an Administrative Procedure Act claim against the NSA, arguing it had acted arbitrarily and capriciously in referring the record to the NSC. Howell started with an examination of the agency status of the NSC. Relying on Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996), she pointed out that "this Circuit has unambiguously held that the NSC is not an agency subject to FOIA." She noted that "the court found that the NSC has a firm structure, making it similar to an agency, but ultimately concluded that because the NSC operates in such close proximity to the Presidentâ€"who chairs itâ€"and does not exercise substantial independent authority, it is 'more like the President's immediate personal staff.' Accordingly, the D.C. Circuit held that 'NSC is not an agency within the meaning of the FOIA.' That conclusion is binding upon this Court." She added that "since the D.C. Circuit squarely held in Armstrong that the NSC is not an agency subject to FOIA, the NSC cannot be compelled to respond to a FOIA request." In an attempt to avoid the restrictions of Armstrong, EPIC argued that Armstrong involved a request to the NSC while its case concerned a referral from the NSA. Since the NSA had treated the NSC as an agency for purposes of the request, EPIC contended that the NSC should be required to respond under the circumstances. But Howell observed that "the plaintiff's argument is unpersuasive. It is true that agencies that receive FOIA requests and discover responsive documents that were created by another agency may forward, or 'refer,' those requests to the agency that 'originated' the document. Here, however, the question is whether an entity that is not subject to FOIA must respond to a FOIA request referred from an agency that is subject to FOIA. This question appears to be one of first impression in this Circuit, since neither the parties nor the Court have located authority that directly addresses the issue. The Court finds the answer to this question to be clear-cut: The answer is no. An entity that is not subject to FOIA cannot unilaterally be made subject to the statute by any action of an agency, including referral of a FOIA request. It would defy logic and well-settled legal norms if an agency could unilaterally expand the scope of FOIA by referring requests to entities beyond FOIA's ambit." EPIC argued that the NSA's regulations allowed it to refer a record to another agency. Howell admitted that was true, but explained that "yet, by referring the plaintiff's FOIA request to the NSCâ€"which is not an 'agency' for FOIA purposesâ€"the NSA does not thereby transform the NSC into an agency and render the NSC 'subject to the FOIA with respect to this request,' as the plaintiff alleges. As an agency within the Executive Branch, the NSA does not have the power to expand FOIA's reach beyond the scope intended by Congress. . .Even assuming, arguendo, that the NSA's regulations authorized a referral to the NSC, the NSA's regulations cannot trump Congressional intent to exclude close presidential advisors from FOIA." EPIC also argued that its reliance on the NSA's representation that the NSC would review the document "was reasonable since, before the D.C. Circuit decided in Armstrong that the NSC was not subject to FOIA, the NSC had voluntarily responded to certain FOIA requests while asserting that it was not statutorily required to do so." But Howell pointed out that "the D.C. Circuit expressly addressed the issue of the NSC's prior voluntary disclosures in Armstrong: 'That the NSC. . .voluntarily subjected certain of its records to the FOIA and the [Federal Records Act] does not reflect any intention to concede, and should not be taken to establish as a matter of law, that the NSC is subject to those statutes.' In short, the law in this Circuit since Armstrong is that the NSC is not subject to FOIA requests." While EPIC decried the apparent lack of a remedy as to the referral to the NSC, Howell indicated that EPIC could still challenge the NSA's ultimate determination on the disclosability of the record. "Dismissing the plaintiff's claim against the NSC, however, does not leave the plaintiff's request stuck in limbo, as the plaintiff fears, because the plaintiff can still pursue its claim against the NSA for wrongfully withholding an agency record in its possession." Finally, Howell turned to EPIC's APA claim against the NSA for acting arbitrarily and capriciously in referring the record to the NSC. Howell dismissed the claim, noting that "APA claims arising out of an agency's response to a FOIA request must be dismissed when they seek relief that can be obtained through a FOIA claim itself." Although EPIC argued its APA claim challenged the agency's regulations rather than its response to the FOIA request, Howell observed that "this distinction is not persuasive. The plaintiff is requesting the same relief for its APA claim that it is requesting for its FOIA claimsâ€"a court order requiring production of all responsive agency records and requiring the NSA to file a Vaughn Index describing and justifying all claimed exemptions."
Issues: Search - Referral

FOIA Project Annotation: Applying the recent D.C. Circuit decision in Judicial Watch v. Secret Service, 726 F.3 208 (D.C. Cir. 2013), in which the court found that White House visitors' records were not agency records when they were used by the Secret Service because the White House had never intended to give up control of the records, Judge Beryl Howell has ruled National Security Presidential Directives do not qualify as agency records even when in the possession of agencies subject to FOIA because they remain subject to strict dissemination and use limitations placed upon them by the White House. The case involved a request from EPIC to the National Security Agency for NSPD 54, "a confidential communication from the President of the United States to a select and limited group of senior policy advisors, cabinet officials, and agency heads on the subject of cybersecurity policy." A transmittal memo that accompanied the directive when it was disseminated "prohibited dissemination of the documents beyond its authorized recipients without White House approval and further instructed that even within receiving agencies, copies should be distributed only on a need to know basis." The directive was classified "Top Secret," but some portions were unclassified. EPIC requested an unredacted copy of NSPD 54 as well as any privacy policies related to the Comprehensive National Cybersecurity Initiative. The NSA disclosed portions of several documents, referred a document to the National Security Council, and withheld NSPD 54 under Exemption 5 (privileges), citing the presidential communications privilege. In an earlier ruling in the case, Howell found that even though the NSA had referred a document to the NSC, EPIC could not force the NSC to respond because it was not subject to FOIA. Howell first noted that "the parties have focused their attention on whether the withholding of records responsive to the plaintiff's request under exemptions to the FOIA was proper, but such exemptions are irrelevant if the records requested are not 'agency records' within the meaning of the FOIA. If the records in question are not 'agency records,' courts do not have the power under the FOIA to order their disclosure." She continued, pointing out that "the parties gloss over the question of whether NSPD 54 is an 'agency record' at all, which is a threshold question the Court must resolve before turning to the applicability of any exemption. Under this Circuit's recent opinion in Judicial Watch, the answer to this critical question as to NSPD 54 is no, rendering all other arguments about the applicability of Exemption 5 moot." Howell explained that under the Supreme Court's ruling in Dept of Justice v. Tax Analysts, 4892 U.S. 136 (1989), the test for determining whether a record was an "agency record" was whether the agency created or obtained the record and whether it had control of the record at the time of the FOIA request. She indicated that while the NSA had clearly obtained the record, it did not exercise control over the record. She noted that in the Judicial Watch decision, the D.C. Circuit had decided that presidential records were subject to the modified "control" test established in United We Stand America v. IRS, 359 F.3d 595 (D.C. Cir. 2004), for congressional records, holding that a record is under the control of an agency only when it has the "ability to use or disclose of the record as it sees fit." Howell noted the D.C. Circuit applied that test to the White House visitors' records and found that "because the White House, an entity not subject to the FOIA, 'has manifested its intent to control the entirety of the [visitors' logs]' the United We Stand test's application militates against a finding that the logs were 'agency records' under the FOIA." It was clear, Howell indicated, that "NSPD 54 originated with the President or the NSC" and that "the President placed significant limits on the distribution of NSPD 54." She pointed out that "for the purposes of determining the indicia of control evidenced by the FOIA-exempt entity, the D.C. Circuit has consistently looked to the intent of the entity manifested at the time of transfer and the clarity of that intent with respect to the documents subject to the FOIA request." She explained that in Judicial Watch, the D.C. Circuit found the White House's intent to control dissemination of the visitors' records was more pronounced than the level of congressional control found in United We Stand. As a result, she observed that "in the instant case, Judicial Watch applies a fortiori. The White House has manifested its intent to control the entirety of NSPD 54 and its dissemination even within agencies to which the document was distributed, a level of control not present in Judicial Watch. . .Thus, under the United We Stand test, the defendant has shown a sufficiently 'clear. . . expression of [White House] intent to control' NSPD 54, making it a non-agency record for purposes of the FOIA." Howell then considered the history of national security instruments, pointing out that 'the secretive nature of these documents is made apparent by the fact that the public only learns of them once they are released and can only guess at how many each President has issued." While several NSPDs had been disclosed voluntarily during litigation, she indicated that plaintiffs had lost the cases in which they had asked for the NSPDs directly. Summing up the sparse case law, she observed that "these cases indicate that NSPD 54 is the type of document that is generally not ordered disclosed under the FOIA. Such national security instruments appear to have only been released voluntarily by the President or NSC that created them, or their release has been approved after a substantial period of time has passed, typically through Presidential libraries." She then noted that "the necessity of the President of communicating to a limited group of high-ranking Executive branch officials any instructions and guidance contained in NSPD 54 in order to effectuate the President 'carrying out the constitutional, statutory, or other official or ceremonial duties of the President,' appears to fall squarely within the same category of documents found to be outside the reach of FOIA in Judicial Watch. Indeed, the question in Judicial Watch appears to be a closer one than the question here, as the documents in Judicial Watch were created by an agency subject to the FOIA, namely, the Secret Service, whereas in the instant case NSPD 54 was created by a FOIA-exempt entity itself, namely, the NSC, and merely distributed to agencies subject to the FOIA." In a footnote, Howell considered the effect of Judicial Watch on the need to claim the presidential communications privilege for records that appear to be agency records. She noted that "as the instant case demonstrates, however, under Judicial Watch, a President need not invoke the presidential communications privilege�"or any other enumerated exemption�"to avoid disclosure pursuant to the FOIA of records for which he or she has clearly exerted efforts to retain control and limit dissemination. . ." She pointed out that "Judicial Watch appears to create an alternative mechanism for the President to keep records secret without resorting to a FOIA exemption."
Issues: Agency Record

FOIA Project Annotation: In a case presenting a unique set of circumstances, Judge Beryl Howell has ruled that EPIC is entitled to $31,180 in attorney's fees from the National Security Agency. However, at the same time Howell denied EPIC more than fifty percent of the award it had requested. EPIC requested National Security Presidential Directive 54, setting forth the government's cybersecurity policies, from the NSA. The NSA denied the request under Exemption 5 (privileges), citing the presidential communications privilege. EPIC filed suit and Howell concluded on her own that NSPD 54 was not an agency record and that she did not have jurisdiction to hear the case. EPIC appealed to the D.C. Circuit. While its appeal was pending, however, EPIC accepted a Rule 68 Offer of Judgment for $3,500 in full resolution of all its claims, including attorney's fees as of January 27, 2014. EPIC nevertheless continued its appeal and the NSA disclosed an unclassified version of NSPD to EPIC in June, 2014. The D.C. Circuit then granted the parties motion to vacate Howell's ruling. EPIC then filed a request for $68, 354 in attorney's fees. The NSA argued EPIC did not substantially prevail because Howell's decision to dismiss was legally correct. But Howell pointed out that her decision had been vacated and had no legal standing. She noted that "the language of the statute is clear and reflects a generally practical consideration regarding whether a FOIA plaintiff obtained the relief it wanted, in the form of the release of the requested information. . .qualifies a FOIA plaintiff as a prevailing party eligible for attorney's fees." In an attempt to bring in its nearly $22,000 fee request for its work before it accepted the agency's Rule 68 offer, EPIC contended Howell "had ruled that the request for NSPD 54 was not properly before the Court." Howell explained that "whether NSPD 54 was an 'agency record' for purposes of FOIA was still 'a live controversy' up to and until the defendant released the document. Thus, the plaintiff's contention that its litigation regarding the disclosure of NSPD 54 was 'not properly before the Court' is incorrect as a matter of law. The fact that the Court concluded that this part of the plaintiff's suit was not subject to a FOIA request does not mean litigation did not occur or that there was no live controversy." Howell found that EPIC was bound by its acceptance of $3500 under Rule 68 for all litigation before the January 27, 2014 judgment. Howell next concluded that the four factors usually assessed in determining entitlement to attorney's fees favored EPIC, including the reasonableness of the government's position. Although vacating Howell's original decision left the parties with an untested status quo, Howell noted that Judge Ellen Segal Huvelle had ruled in Center for Effective Government v. Dept of State, 7. F. Supp. 3d 16 (D.D.C. 2013), that presidential directives were not protected by Exemption 5. She pointed out that "thus, far from asserting a position that was 'correct as a matter of law' the defendant, in light of Center for Effective Government asserted a position that was incorrect as a matter of law." NSA argued that EPIC had negotiated in bad faith by used "exploding" settlement offers�"offers made just prior to court deadlines to make it appear as if the parties were negotiating but which were then withdrawn almost immediately after the court submissions were filed. Howell observed that "the plaintiff may, as the defendant admits, place any time limits on negotiations and offers that it wishes. Nevertheless such sharp practice of extending, and then withdrawing settlement offers subverts the purpose of Rule 68 and the local rules, which are designed to encourage settlement. . .The defendant is correct that such tactics should not be countenanced to maintain the letter and spirit of the rules." As a result, Howell disallowed more than $15,000 "sought after the abrupt withdrawal of the plaintiff's first settlement offer on October 1, 2014."
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award, Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding, Litigation - Attorney's fees - Prevailing party

Date Filed	Doc #	Docket Text
2010-02-04	1	COMPLAINT against NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL ( Filing fee $ 350, receipt number 4616027382) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 02/05/2010)
2010-02-04		SUMMONS (4) Issued as to NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 02/05/2010)
2010-02-04	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER identifying Corporate Parent NONE for ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 02/05/2010)
2010-03-25	3	NOTICE of Appearance by Joshua Ilan Wilkenfeld on behalf of NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Wilkenfeld, Joshua) (Entered: 03/25/2010)
2010-03-25	4	MOTION to Dismiss Partial Motion to Dismiss by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 03/25/2010)
2010-03-25	5	ANSWER to 1 Complaint by NATIONAL SECURITY AGENCY.(Wilkenfeld, Joshua) (Entered: 03/25/2010)
2010-03-25	6	STANDING ORDER Signed by Judge Ricardo M. Urbina on 3/25/2010. Read this Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(tg, ) (Entered: 03/25/2010)
2010-04-08	7	Memorandum in opposition to re 4 MOTION to Dismiss Partial Motion to Dismiss filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 04/08/2010)
2010-04-15	8	REPLY to opposition to motion re 4 MOTION to Dismiss Partial Motion to Dismiss filed by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL. (Wilkenfeld, Joshua) (Entered: 04/15/2010)
2011-01-20		Case reassigned to U.S. District Judge Beryl A. Howell. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
2011-07-07	9	MEMORANDUM OPINION regarding 4 defendants' partial motion to dismiss. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
2011-07-07	10	ORDER granting 4 Defendants' Partial Motion to Dismiss for the reasons set forth in the accompanying Memorandum Opinion. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)
2011-07-07		Set/Reset Deadlines: Joint Report due by 7/20/2011. (zalg, ) (Entered: 07/08/2011)
2011-07-20	11	STATUS REPORT JOINT REPORT by ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY AGENCY. (Wilkenfeld, Joshua) (Entered: 07/20/2011)
2011-07-21		MINUTE ORDER (paperless) adopting the following proposed SCHEDULING ORDER: The last day for supplemental production of responsive documents shall be August 30, 2011. Defendant's motion for summary judgment and supporting materials shall be filed by October 11, 2011. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by November 11, 2011. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be filed by December 8, 2011. Plaintiff's reply in further support of its cross-motion shall be filed by December 22, 2011. Signed by Judge Beryl A. Howell on 7/21/2011. (lcbah2) (Entered: 07/21/2011)
2011-07-21		Set/Reset Deadlines: Supplemental production of responsive documents shall be filed by 8/30/11. Defendant's motion for summary judgment and supporting materials shall by filed by 10/11/11. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by 11/11/11. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be filed by 12/8/11. Plaintiff's reply in further support of its cross-motion shall be filed by 12/22/11. (zalg, ) (Entered: 07/26/2011)
2011-10-11	12	MOTION for Summary Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration Declaration of Diane M. Janosek, # 3 Tab A, # 4 Tab B, # 5 Tab C, # 6 Tab D, # 7 Tab E, # 8 Tab F, # 9 Tab G, # 10 Declaration Declaration of Mary Ronan, # 11 Statement of Facts, # 12 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 10/11/2011)
2011-11-11	13	Cross MOTION for Summary Judgment Combined Cross-Motion and Motion for Oral Hearing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Genuine Issues in Opposition to Defendant's Statment of Material Facts, # 4 Text of Proposed Order)(Verdi, John). Added MOTION for Hearing on 11/14/2011 (jf, ). (Entered: 11/11/2011)
2011-11-11	14	Memorandum in opposition to re 12 MOTION for Summary Judgment Combined Cross-Motion and Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts, # 2 Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 3 Text of Proposed Order)(Verdi, John) (Entered: 11/11/2011)
2011-12-08	15	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
2011-12-08	16	Memorandum in opposition to re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing Combined reply in support of NSA's motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)
2011-12-22	17	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 12/22/2011)
2012-03-28	18	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)
2012-03-28	19	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)
2012-05-22	20	NOTICE OF SUBSTITUTION OF COUNSEL by Judson Owen Littleton on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Joshua Wilkenfeld (Littleton, Judson) (Entered: 05/22/2012)
2012-10-10	21	NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 10/10/2012)
2012-12-22	22	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 12/22/2012)
2013-07-08	23	NOTICE OF SUBSTITUTION OF COUNSEL by Gregory Peter Dworkowitz on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Judson O. Littleton (Dworkowitz, Gregory) (Entered: 07/08/2013)
2013-08-02	24	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/02/2013)
2013-09-09		MINUTE ORDER (paperless) Pending before the Court are the 12 Defendant's Motion for Summary Judgment and the 13 Plaintiff's Cross-Motion for Summary Judgment, in which the parties dispute whether the "National Security Presidential Directive 54 ("NSPD 54") and related agency records," are exempt from disclosure under the Freedom of Information Act ("FOIA"). The parties assume in their briefing that the requested documents are "agency records" subject to FOIA disclosure, unless one of nine specific exemptions applies. See 5 U.S.C. § 552(b)(1)-(9); Pl's Mem. in Supp. of Cross-Mot. for Summ. J ("Pl's Mem.") at 2, ECF No. 13-1; Def's Mem. in Supp. of Mot. for Summ. J. ("Def's Mem.") at 3, ECF No. 12-1. In Judicial Watch v. United States Secret Service, Civil No. 11-5282, 2013 U.S. App. LEXIS 18119 (D.C. Cir. August 30, 2013), the United States Court of Appeals for the District of Columbia Circuit determined that certain White House Access Control System ("WHACS") records, which were "arguably created by White House staff... in the course of carrying out the constitutional, statutory, official, and ceremonial duties of the President," id. at 54-55 (internal quotations and citations omitted), were not "agency records" subject to the FOIA. In reaching this conclusion, the D.C. Circuit applied the modified control test set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (2004), which had previously been applied only to Congressional records, 2013 U.S. App. LEXIS 18119 at 40-41 n. 21. A critical focus of the modified control test is whether "the non-covered entity here, the White House has manifested a clear intent to control the documents." Id. at 37. If the parties would like the opportunity to address the relevance, if any, of the D.C. Circuit's recent decision in Judicial Watch to the issues raised by the withholding of the requested documents in the instant case, the parties are directed to submit jointly, by September 16, 2013, a schedule for supplemental briefing. Signed by Judge Beryl A. Howell on 09/09/2013. (lcbah2) (Entered: 09/09/2013)
2013-09-09		Set/Reset Deadlines: Joint schedule for supplemental briefing due by 9/16/2013. (tg, ) (Entered: 09/09/2013)
2013-09-16	25	NOTICE of Appearance by Amie L. Stepanovich on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Stepanovich, Amie) (Entered: 09/16/2013)
2013-09-16	26	STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 09/16/2013)
2013-10-21	27	MEMORANDUM AND OPINION regarding the defendant's 12 Motion for Summary Judgment and the plaintiff's 13 Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1) (Entered: 10/21/2013)
2013-10-21	28	ORDER GRANTING in part and DENYING in part the defendant's 12 Motion for Summary Judgment; GRANTING in part and DENYING in part the plaintiff's 13 Motion for Summary Judgment and DENYING the plaintiff's 13 Motion for Hearing as moot. The parties shall, by November 4, 2013, jointly file a proposed schedule to facilitate the timely production of records responsive to the second portion of the plaintiff's FOIA request and resolution of any disputes which may arise regarding their production. See Order for further details. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1, ) (Entered: 10/21/2013)
2013-10-22		Set/Reset Deadlines: Response to Order of the Court due by 11/4/2013. (tg, ) (Entered: 10/22/2013)
2013-11-04	29	STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/04/2013)
2013-11-04		MINUTE ORDER (paperless) entering the following SCHEDULING ORDER to control further proceedings in this matter. The defendant shall, by November 8, 2013, provide any remaining responsive records to the plaintiff or, in the alternative, submit a Vaughn index detailing the records or portions of records being withheld. The parties shall, by November 15, 2013, jointly file a proposed briefing schedule to resolve any outstanding disputes in this matter or advise the Court that this case should be closed. Signed by Judge Beryl A. Howell on November 4, 2013. (lcbah1) (Entered: 11/04/2013)
2013-11-05		Set/Reset Deadlines: Defendant's Responsive records or in the alternative a Vaughn Index due by 11/8/2013. Joint Briefing Schedule due by 11/15/2013. (tg, ) (Entered: 11/05/2013)
2013-11-15	30	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/15/2013)
2013-11-15		MINUTE ORDER (paperless) CLOSING this matter. In light of the parties' 30 Joint Status Report, in which the parties state that there "are no further substantive issues to be resolved by this Court," the Clerk is directed to close this case. The Court retains jurisdiction of this matter for the purposes of determining appropriate allocation of fees and costs, if judicial intervention is warranted. The parties are ORDERED to jointly file, by December 16, 2013, a status report indicating whether briefing on fees and costs will be necessary and, if so, a proposed schedule for such briefing. Signed by Judge Beryl A. Howell on November 15, 2013. (lcbah1) (Entered: 11/15/2013)
2013-11-19		Set/Reset Deadlines: Joint Status Report due by 12/16/2013. (tg, ) (Entered: 11/19/2013)
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