2016-02-12 DOJ Rule 7.2 (Cases) (Flores V DOJ)

Case 1:15-cv-02627-JG-RLM Document 29 Filed 02/12/16 Page 1 of 40 PageID #: 1642
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
LOUIS FLORES,
Civil Action No. 15-CV-2627
Plaintiff,
v.
(Gleeson, J.)
(Mann, M.J.)
UNITED STATES DEPARTMENT OF

JUSTICE,
DEFENDANTS STATEMENT
OF COMPLIANCE WITH
LOCAL CIVIL RULE 7.2
Defendant.
Pursuant to Local Civil Rule 7.2 of the Local Rules of the United States District Court for
the Eastern District of New York, Defendant United States Department of Justice (Defendant)
is providing to Plaintiff Pro Se LOUIS FLORES attached printed copies of decisions cited in the
Memorandum of Law in Support of Defendants Motion for Summary Judgment that is
unreported or reported exclusively on computerized databases:
1. Davis v. United States Dept of Homeland Sec., No. 11-CV-203, 2013 WL
3288418 (E.D.N.Y. June 27, 2013);
2. Main Street Legal Serv. v. Natl Sec. Council, -- F.3d --, 2016 WL 305175 (2d
Cir. Jan. 26, 2016); and
3. Schlabach v. Internal Revenue Serv., No. CS-96-361, 1996 WL 887472 (E.D.
Wash. Nov. 5, 1996).
Case 1:15-cv-02627-JG-RLM Document 29 Filed 02/12/16 Page 2 of 40 PageID #: 1643
Dated: Brooklyn, New York

February 12, 2016
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
Attorney for Defendant
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201
By:
TO:
[via CM/ECF and certified first-class mail]

Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Plaintiff, Pro se
s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant United States Attorney
(718) 254-6498
Case
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Davis
v. U.S.
Dept. of Homeland Sec., SlipDocument
Copy (2013) 29
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2013 WL 3288418
2013 WL 3288418
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Corey DAVIS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, Transportation Security
Administration; United States Department
of Justice, Federal Bureau of Prisons; and
Federal Bureau of Investigations, Defendants.
No. 11CV203 (ARR)(VMS).
|
June 27, 2013.
request. For the following reasons, defendants' motions are

granted in part and denied in part.
BACKGROUND
I. TSA Requests
On August 9, 2010, Davis submitted a FOIA request to the
TSA seeking the following information:
1. The airline carrier and flight number with the
corresponding passenger list for a flight which
originated in DallasFort Worth, traveled to Cleveland,
Ohio, and then continued on to New York, LaGuardia
airport on either March 27, 2006 or March 28, 2006;
Corey Davis, Tucson, AZ, pro se.
2. Any documents in [the TSA's] possession regarding the

flight described in item # 1 of this request. This includes
any notifications, reports, memorandums, or e-mail from
within [the TSA] and from any outside law enforcement
agency.
Ameet B. Kabrawala, United States Attorney's Office,

Brooklyn, NY, for Defendants.
3. The names and titles of all flight crew members on the

flight described in item # 1 of this request.
OPINION AND ORDER
4. Any documents of the TSA requiring commercial

air carriers to electronically store flight records. I.e.
passenger lists, incident reports, payment records, flight
delays.
Attorneys and Law Firms
ROSS, District Judge.

*1 Corey Davis (plaintiff or Davis) brings this lawsuit
under the Freedom of Information Act (FOIA) seeking
documents from defendant federal agencies. Defendant
agency the Transportation Security Administration (TSA)
conducted a search and informed plaintiff that it found no
responsive records or it could not confirm or deny the
existence of responsive records. The Federal Bureau of
Prisons (BOP) released some of the documents plaintiff
requested, informed him it was unable to find others, and
withheld still others based on exceptions to public disclosure
enumerated in the FOIA. The TSA and the BOP now seek
summary judgment, which plaintiff opposes. Meanwhile, the
Federal Bureau of Investigation (FBI) turned over some
documents to plaintiff and sought a stay during which it
planned to release additional documents at a rate of five
hundred per month over thirty-four months. Plaintiff opposed
the stay. In its reply to plaintiff's opposition, the FBI now
moves for summary judgment on the ground that plaintiff
failed to pay fees for search and reproduction costs for his
5. The name of the air marshal assigned to the flight

described in item # 1 of this request
6. Any and all documents in [the TSA's] possession bearing
the name Corey Davis ..., Chester Davis ..., Chet Davis,
and or William Duval Carter.
Decl. of Yvonne L. Coates, Ex. A, Dkt: # 68 (Coates Decl.),
at 1617. After plaintiff provided documentation to verify his
identity and ensure his personal information would not be
released to third parties, Coates Decl. 56, the TSA sent
plaintiff a letter on April 18, 2011, informing him that the
TSA had located no records responsive to his request.Id.
9; id., Ex. F. Plaintiff requested that the TSA conduct a
more thorough search in a letter dated May 29, 2011, id.
10, and ultimately filed an amended complaint challenging
the sufficiency of the TSA's search for records, id. 11; Dkt.
# 26, at 4.
2016 Thomson Reuters. No claim to original U.S. Government Works.
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*2 As to plaintiff's request for information related to

the DallasClevelandNew York flight, Yvonne Coates, the
FOIA Officer for the TSA, stated:
The TSA offices that searched for
information in response to Plaintiff's
FOIA Request were limited by
the identifying information provided
about the flight The only flight
information Plaintiff provided was that
it originated in DallasFort Worth,
traveled to Cleveland, Ohio and
continued to New York LaGuardia
Airport on either March 27, 2006 or
March 28, 2006. On the basis of that
information, the TSA was unable to
determine the precise flight referenced
in the Plaintiff's request and therefore
could not search for information that
depended on the identification of the
flight at issue.
Coates Decl. 15. As to plaintiff's fourth request for
informationrelating to documents of the TSA requiring
commercial air carriers to electronically store flight
recordsCoates stated, After consideration by the relevant
subject matter experts at [the TSA's Office of Security
Operations], the TSA determined there were no responsive
records to this request.Id. 20.The TSA also searched
various databases for the names provided by plaintiff in
his sixth request for documents and stated that the searches
revealed no responsive records. Id. 1718, 2123, 25, 28
32.The TSA also searched its No Fly and Selectee Lists, as
well as its Secure Flight database, for the names plaintiff
identified in his sixth request. Id. 2627.With respect
to these databases, the TSA issued a Glomar response,
meaning that it refused to confirm or deny the existence of
responsive records. 1 Id.
II. BOP Requests

The BOP received two FOIA requests from plaintiff and
located responsive material, some of which it released
to plaintiff and some of which it withheld under FOIA
exceptions. See generally Decl. of Donna Johnson, Dkt. # 70
(Johnson Decl.). The relevant materials are as follows:
a. FOIA Request No. 201101370
Plaintiff's complaint sought to compel disclosure of several

items from the BOP pertaining to this request, including:
1. Continuous video surveillance footage capturing Unit
ThreeNorth at the Metropolitan Detention Center
Brooklyn (MDC) for twenty-four hours of each day
from March 12, 2009 and May 31, 2009. 2
2. Video surveillance footage of the East Building, sixth

floor sallyport at the MDC on June 9, 2010, between the
hours of 8:00 AM and 9:30 AM.
3. A complete copy of plaintiff's inmate file (also
called the Central File).
4. A complete copy of plaintiff's Special Investigative
Services (SIS) file, including all information
from all BOP facilities.
5. Copies of any and all correspondence between
plaintiff and the BOP.
6. The full name and title of a BOP employee named
Ms. or Mr. Tapp.
7. The names, inmate ID numbers, and bedding
assignments of all inmates housed in Unit Three
North at the MDC any time between March 1, 2009
and May 31, 2009.
*3 8. Recordings of all telephone calls made by
plaintiff while housed at the MDC, FCI Beckley,
and the Federal Detention CenterPhiladelphia,
including a record of time, date, length of call, and
location within the institution from which the call
was placed.
9.
Any and all records documenting the

BOP's participation in and/or cooperation with
investigations by any law enforcement agencies
regarding plaintiff.
Compl., Dkt. # 1, at 56; see Johnson Decl. 6. The BOP

informed plaintiff in a letter on June 3, 2011 that it had
identified one hundred pages of records and one compact
disc (CD) that were responsive to plaintiff's request.
Johnson Decl. 8. The BOP released seventy-two
pages of those documents to plaintiff in their entirety,
and released twelve pages with excisions. Id. Sixteen
pages of documents and the CD were withheld in their
entirety, pursuant to FOIA exemptions (b)(6) and (b)
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(7)(C), id.; however, the BOP subsequently sent a CD

containing sixteen recorded conversations to the MDC
and advised institutional staff to allow plaintiff to listen
to the conversations, id. 9. The BOP stated in the
June 3, 2011 letter that it found no records responsive to
plaintiff's request for his SIS file or his request for the
names, identification numbers, and bed assignments of
all inmates housed within Unit ThreeNorth at the MDC
from March 12, 2009 to May 31, 2009. Id. Ex. B, at 2.
The BOP provided the full name of its employee Cynthia
Tapp, but did not provide a title. Id. Finally, with respect
to the request for video surveillance, the BOP informed
plaintiff that it was processing his request.Id.
In support of its motion, the BOP also submitted a declaration
of Walter Obando, an SIS technician at the MDC, familiar
with the MDC's practices regarding retention of video
surveillance recordings. Decl. of Walter Obando (Obando
Decl.), Dkt. # 71, 12. Obando stated that [o]ther than
a video recording of a May 8, 2009 assault perpetrated by
plaintiff against a fellow MDC inmate in Unit 3N ... no
video surveillance recordings were located in response to
[plaintiff's request].Id. 5. The declaration further stated,
The MDC retains video surveillance for at least 30 days, and
up to 60 days, unless otherwise required for administrative or
evidentiary purposes.Id. 6. 3 The Obando declaration also
stated that the MDC saves audio recordings of telephone calls
from the facility for 180 days. Id. 9. 4 Obando stated that
the MDC possessed copies of audio recordings of plaintiffs'
calls from May 4, 2010 through December 31, 2010, id. 8,
as well as records regarding the date, time, and duration of
the call, as well as the location within the MDC from which
the call was placed, id. 10.The MDC did not retain records
on the cost of the call. Id. The records requested by plaintiff
were saved and copies were forwarded to the MDC's Legal
Counsel. Id. 8, 11.
b. FOIA Request. No.201102164

*4 Plaintiff's amended complaint sought to compel
disclosure of additional items from the BOP, including:
1. A complete list of all 100 and 200level incident reports
for assault that were issued at the MDC and Metropolitan
Correction Center (MCC) between 2000 and 2010.
2. All records of 100 and 200level incident reports
that were issued at the MDC and the MCC that were
subsequently referred to the FBI for prosecution between
2000 and 2010.
3. Any and all records documents the FBI's acceptance or

rejection of the aforesaid referrals.
Am. Compl., Dkt. # 26, at 12; see Johnson Decl. 10. The
BOP notified plaintiff by letter dated March 29, 2012 that
ninety-seven pages were received in response to his request.
Johnson Decl. 12; accord id., Ex. E. Sixty-eight pages were
released to plaintiff in their entirety and twenty-nine pages
were released with excisions. Id. 12.The letter informed
plaintiff that the excisions were made because they contained
third-party information and information intended for staff
use only, which could reasonably constitute an unwarranted
invasion of personal privacy.Id. Ex. E, at 1. With respect to
the third request, seeking any and all records documenting
the FBI's acceptance or rejection of MDC and MCC referrals,
the letter informed plaintiff that a search fee of $5,382.00 had
been assessed for the request, and the search would take up
to six hundred hours. Id. at 12.
In his opposition to summary judgment, plaintiff asserted that
the records he received were incomplete because they did
not indicate whether the 100 and 200level incident reports
listed therein had been referred for prosecution. PL's Mot. in
Opp'n to Def .'s Mot. for Surnm. J. & a Stay (Pl.'s Opp'n
Mot), Dkt. # 623, 38. He also argued that the BOP's
claim that they required prepayment of the search fee and
six hundred hours to search amounted to bad faith, or at a
minimum[,] error.Id. 42.
c. Third FOIA Request to the BOP

In his amended complaint, plaintiff also alleged that he made
a third request to the BOP on May 31, 2011 5 for the following
information:
1. Any and all records pertaining to an August 8, 2009

incident at the MDC in which three pieces of plaintiff's
mail turned up shredded.
2. Any and all records pertaining to an incident which
occurred on or about December 28, 2009 at the
Federal Detention CenterPhiladelphia, in which
an inmate with the last name ElSibbai left a map
in the cell shared by ElSibbai and plaintiff. The
request included the map, as well as any records of
involvement by any branch of the Department of
Justice in investigating the incident.
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3. Verification from the outgoing legal mail logs

maintained at the MDC that plaintiff sent three
pieces of mail to the Warden MacDougal Walker
Correctional Institution in Connecticut on August
15 and 29, 2010 and January 11, 2011.
See Am, Compl. at 23. The BOP did not address this
request in support of its motion for summary judgment.
However, in reply to plaintiff's opposition to summary
judgment, the BOP provided the declaration of Sarah
Lilly, a legal assistant at FCI Beckley, who stated that
plaintiff's request was received at the BOP's FOIA/PA
Section in Washington, DC on June 1, 2011; that due
to an error with the BOP's electronic referral system,
plaintiff's request was misplaced; that plaintiff was
advised of the problem and asked to resubmit his request
directly to Lilly; and, that as of Lilly's declaration,
plaintiff had not responded to the BOP's correspondence.
Lilly Decl. 58, 10. The BOP therefore considered the
request closed. Id. 9.
III. FBI Request
*5 On April 6, 2011, plaintiff submitted a POIA request
to the FBI seeking two categories of records, including, as
relevant here:
All records relating to the following
corrections facilities' cooperation with
the [FBI] in [its] investigation
of Corey Davis .... This request
includes any agent notes, interview
notes, 302's, audio or video records,
affidavits,
written
agreements,
waivers, telephone records or
recordings, computer records, memos,
E-mails, and or any other relevant,
related, and tangible records[,]
followed by a list of five detention Centers. Am. Compl. at
45; Decl. of David Hardy (Hardy Decl.), Dkt. # 69, 5;
id., Ex. A. After some correspondence back and forth with
plaintiff, the FBI advised plaintiff on September 1, 2011 that
it had identified records potentially responsive to his request
but they were not in their expected location and could not be
located after a reasonable search.Hardy Decl. 12, The FBI
informed plaintiff it was administratively closing his request
due to its inability to locate the records, and plaintiff named
the FBI as a defendant in this suit in his amended complaint.
Id. 1213, Plaintiff made several additional requests 6 of
the FBI for information it possessed about him and related

to its investigation of him for a criminal case brought in
the District of Connecticut. 7 See id ., Ex. H, I. The FBI
was able to locate records responsive to these requests, and
notified plaintiff that approximately sixteen thousand pages
and fifteen CDs of potentially responsive material had been
located, with duplication fees estimated at $1,815.00. Id .
16, Plaintiff responded to this notification by letter dated
December 2, 2011, stating that he was willing and able to pay
all costs associated with the release of the records described
in the FBI's correspondence. Id. 17;accord id., Ex. L. The
FBI subsequently made three interim releases of material to
plaintiff, for which plaintiff paid the relevant fees. Id. 21
23, 24;see also Supplemental Hardy Decl., Ex. T. The FBI
made an additional interim release to plaintiff, for which it
instructed him no payment was required, Hardy Decl. 25.
As of the filing of the instant motion for summary judgment,
the FBI stated that it had completed review of 3,265 pages
of material, while approximately 12,839 pages and sixteen
DVDs of material remained to be reviewed. Id. 38.The FBI
estimated that, at its rate of reviewing five hundred pages
a month, it needed thirty-four months to review all of the
documents and the sixteen DVDs. It therefore sought a stay of
this action to continue to process plaintiff's request. See Mem.
of Law in Supp. of Defs.' Mot. for Summ. J. & a Stay, Dkt.
# 72, 14.
Following this submission, the FBI made its fifth interim
release of material to plaintiff on June 29, 2012, and
instructed plaintiff to remit payment of $55.80 for this release.
Supplemental Hardy Decl. 26. On August 16, 2012, the
FBI informed plaintiff that the fees from the June 29, 2012
release were overdue and that it had stopped processing his
request. Id. 27; id., Ex. W. Plaintiff subsequently notified
the FOIA officer of a change of address. Id., Ex. X. On
September 10, 2012, the FBI again informed plaintiff that it
had stopped processing his request because it had still not
received payment for the June 29, 2012 release. Id., Ex. Y.
The letter stated that [s]ince this has been a recurring issues,
we are requiring you to pay the full estimated amount in
advance.Id. (citing 28 C.F.R. 16.11(i)(2)-(3)). The FBI
gave plaintiff thirty days to pay the estimated balance of $1,7
12.50.Id. On January 24, 2013, the FBI offered to proceed
with plaintiff's request if plaintiff agreed to narrow the scope
of the request and pay an outstanding balance of $96.20.
Id., Ex. AA. Plaintiff responded on February 3, 2013, that
he did not wish to have his request narrowed in any way
and objecting to the FBI's aggregation of his requests. Id.,
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Ex. BB. According to the FBI, plaintiff has not remitted any
further payment for the processing of his FOIA requests. Id.
33.Consequently, as of the filing of its reply to plaintiff's
opposition to its motion for a stay, the FBI stated that it has
discontinued processing responsive requests, considers this
matter resolved, and will proceed to close the request.Id.
37 (citing 28 C.F.R. 16.11(i)(4)). The FBI therefore now
moves for summary judgment, rather than a stay. See Reply
Mem. of Law in Further Supp. of Defs.' Mot. for Summ. J. 8.
DISCUSSION
I. Summary Judgment Standard
*6 In order to prevail on a motion for summary judgment
in a FOIA case, the defending agency has the burden of
showing that its search was adequate and that any withheld
documents fall within an exemption to the FOIA,Carney v.
U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citing 5
U.S.C. 552(a)(4)(B)). Affidavits or declarations supplying
facts indicating that the agency has conducted a thorough
search and giving reasonably detailed explanations why any
withheld documents fall within an exemption are sufficient to
sustain the agency's burden. Id.The agency is not expected
to take extraordinary measures to find the requested records,
but only to conduct a search reasonably designed to identify
and locate responsive documents.Garcia v. U.S. Dep't of
Justice, Office of Info. & Privacy, 181 F.Supp.2d 356, 368
(S.D.N.Y.2002); see also Meeropol v. Meese, 790 F.2d 942,
956 (D.C.Cir.1986) ([A] search need not be perfect, only
adequate, and adequacy is measured by the reasonableness of
the effort in light of the specific request.).
To establish the adequacy of a search, an agency affidavit or
declaration must be relatively detailed and non-conclusory
and submitted in good faith. SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation
marks omitted); see also Wood v. FBI, 432 F.3d 78, 85
(2d Cir.2005).This means, for instance, that an agency
affidavit or declaration must describe in reasonable detail
the scope of the search and the search terms or methods
employed.Serv. Women's Action Network v. Dep't of Def.,
888 F.Supp.2d 231, 24041 (D.Conn.2012).[T]he affidavits
should identify the searched files and describe at least
the general structure of the agency's file system which
renders any further search unlikely to disclose additional
relevant information.Katzman v. CIA, 903 F.Supp. 434, 438
(E.D.N.Y.1995) (quoting Church of Scientology v. IRS, 792
F.2d 146, 151 (D.C.Cir.1986)). Affidavits submitted by an
agency are accorded a presumption of good faith. Carney,

19 F.3d at 812 (quoting Safecard Servs., Inc., 926 F.2d at
1200).
Summary judgment is inappropriate where the agency's
response raises serious doubts as to the completeness of
the agency's search, where the agency's response is patently
incomplete, or where the agency's response is for some
other reason unsatisfactory. Nat'l Day Laborer Organizing
Network v. U.S. Immigration & Customs Enforcement, 877
F.Supp.2d 87, 96 (S.D.N.Y.2012) (internal quotation marks
omitted). Once the agency has satisfied its burden, the
plaintiff may defeat summary judgment by making a showing
of bad faith or by providing evidence that an exemption
claimed by the agency should not apply. Carney, 19 F.3d at
812.
II. Application
a. TSA Request
Plaintiff did not oppose the TSA's motion for summary
judgment in his opposition papers. See Dkt. # 623.
Nevertheless, the court has examined the Coates Declaration
to determine the adequacy of the TSA's search and whether
the withheld documents fall under exemptions to the FOIA.
1. Coates' Ability to Provide a Declaration

*7 Coates states that she is the FOIA Officer for the TSA
and is responsible for processing all requests made to the
TSA under FOIA and for supervismg the determination of
what records or portions thereof should be disclosed.Coates
Decl. 1. She states that she is familiar with the TSA's
obligations under FOIA and the Privacy Act, and avers
that the statements made in her declaration are based on
my personal knowledge, information made available to me
in the performance of my officials duties, and conclusions
and determinations reached in accordance therewith.Id. 2.
Coates does not further describe her role in the TSA's search
for responsive records in plaintiff's case, but instead goes on
to describe the searches conducted by seven offices within
the TSA that the agency identified as potentially possessing
responsive records. Id. 1334.
The Second Circuit has held that, for summary judgment
purposes, the agency should submit an affidavit from [the]
agency employee responsible for supervising [the] FOIA
search.Carney, 19 F.3d at 814. At least one court in
this district has interpreted this language to require that
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the affidavit be submitted by an official involved in the

specific search for the documents at issue in the FOIA
request. See Katzman, 903 F.Supp. at 438. In Katzman,
defendant the Central Intelligence Agency (CIA) submitted
the declaration of John H. Wright, the agency's Information
and Privacy Coordinator, who, like Coates, averred that his
statements were based on personal knowledge, information
made available to [him] in [his] official capacity, the advice
of the CIA's Office of General Counsel, and conclusions
reached in accordance therewith.Id. at 437 (alterations in
original) (internal quotation marks omitted). The court held
that this declaration was insufficient to meet the; CIA's
burden of establishing the adequacy of the search, explaining,
Although Wright testifies that he is responsible for directing
the search of CIA records, he fails to elaborate on the extent
of his involvement with respect to the plaintiff's search
request.Id. at 438.The court further explained that, as Wright
had stated that three component offices of the CIA had
conducted a search for records pertaining to plaintiff, Carney
required that declarations from supervisory personnel in each
of those components should be obtained. Id.
Since Katzman, however, district courts within this circuit
and in the D.C. Circuit have found an official with broader
supervisory authority who is not necessarily involved in the
specific search for the records at issue to be capable of
submitting a sufficient declaration. See, e.g., Serv. Women's
Action Network, 888 F.Supp.2d at 251 (declaration of
second line supervisor who doesn't Seem to have actually
supervised the search, but seems to have been an attenuated
supervisor of a person who did was sufficient where
declarant provided a thorough description of the search and
reasons why certain actions were taken); Holt v. U.S. Dep't
of Justice, 734 F.Supp.2d 28, 38 (D.D.C.2010) (declarations
averring familiarity with agency's components' procedures for
handling FOIA requests were sufficient without statement of
declarant's personal knowledge of the handling of plaintiff's
FOIA requests); BluntBey v. U.S. Dep't of Justice, 612
F.Supp.2d72, 74 (D.D.C.2009) (declarants' statements ...
based on their personal knowledge acquired through the
performance of their official duties and their review of the
official files were sufficient for summary judgment); cf. El
Badrawi v. Dep't of Homeland Sec., 583 F.Supp.2d 285, 299
300 (D.Conn.2008) (declaration of chief of agency's FOIA
branch, who stated she was familiar with plaintiff's FOIA
request and declaration was based on information furnished
to her in her official capacity, held insufficient on other
grounds). 8
*8 The court need not resolve this issue as a matter of

law. See Serv. Women's Action Network, 888 F.Supp.2d
at 244 (The Court believes that the discrepancies in the
case law reflect the fact-intensive nature of this inquiry ...
[accordingly,] it ultimately resolves the parties' arguments
on this point on the basis of the individual declarations.).
Suffice it to say that Coates' declaration permits the court
to infer that she has personal knowledge to support the
motion for summary judgment. Most importantly, Coates
states that she is responsible for processing all requests
made to TSA under FOIA ... and for supervising the
determination of what records or portions thereof should
be disclosed.Coates Decl. 1 (emphasis added). Further,
Coates' office identified those components of the TSA that
were likely to have responsive records, id. 12, and Coates
provided detailed descriptions of each of these components'
search methods, id. 1718, 21, 23, 2532.This information
was based on her personal knowledge, information made
available to [her] in the performance of [her] official
duties, and conclusions and determinations reached and
made in accordance therewith.Id. 2, Although this latter
statement is nearly identical' to the generalized statement
found insufficient in Katzman, and Coates does not elaborate
on the extent of her involvement in processing plaintiff's
search request, the court finds that her supervisory position,
combined with the thorough description of the search and
her familiarity with TSA search procedures, constitutes
sufficient personal knowledge for Rule 56(c)(4).See Serv.
Women's Action Network, 888 F.Supp.2d at 251;see also
Barnard v. Dep't of Homeland Sec., 598 F.Supp.2d 1, 19
(D.D.C.2009) (FOIA declarants may include statements in
their declarations based on information they have obtained in
the course of their official duties.).
2. Adequacy of Search
Plaintiff's request to the TSA sought three categories of
records: records relating to the airline flight from Dallas
Forth Worth to New YorkLaGuardia via Cleveland on
March 27, 2006 or March 28, 2006 (the flight records);
any and all documents bearing the name Corey Davis,
Chester Davis, Chet Davis, and/or William Duval Carter
(the name records); and documents that require air carriers
to store flight records electronically (the electronic storage
records).
With respect to the name records, the TSA identified seven
component offices that might possess records responsive to
plaintiff's request. Coates Decl. 13. Coates' declaration
describes in detail the function each component office serves
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within the TSA, the databases they searched, and the search
terms used.Id. 1618, 2132.The description is detailed
and non-conclusory. Accordingly, the court finds that the
TSA engaged in an adequate search for the name records.
With respect to the electronic storage records, the Coates
declaration states that the Office of Security Operations
(OSO) manages the TSA's domestic security operations,
with the exception of law enforcement, including the security
operations and administrative procedures for all commercial
airports and the management of all transportation security
officers, It also maintains reports and inspections pertaining
to regulatory compliance.Id. 19.The declaration then
states, After consideration by the relevant subject matter
experts at OSO, TSA determined there were no responsive
records to this request.Id . 20.The declaration does not
explain how these experts arrived at this determination; what,
if any, databases they searched; what actions were taken
to determine whether responsive records existed in other
components; or whether plaintiff was asked to provide a more
specific request. The single statement in the declaration does
not provide sufficient detail and is conclusory. Accordingly,
the court finds that the Coates declaration does not support
a finding that the TSA conducted an adequate search for the
electronic storage records.
*9 Finally, with respect to the flight records, the Coates
declaration states:
The TSA offices that searched for
information in response to Plaintiff's
FOIA Request were limited by
the identifying information provided
about the flight. The only flight
information Plaintiff provided was that
it originated in DallasFort Worth,
traveled to Cleveland, Ohio and
continued to New York LaGuardia
Airport on either March 27, 2006 or
March 28, 2006. On the basis of that
information, the TSA was unable to
determine the precise flight referenced
in the Plaintiff's request and therefore
could not search for information that
depended on the identification of the
flight at issue.
Id. 15 (emphasis added). 9 The plain implication is that the
TSA did not conduct a search for the flight records at all.
Under FOIA, [a]n agency's obligation to process a request

for records is predicated on the agency's receipt of a
request which reasonably describes the records sought and
is made in accordance with published rules stating the time,
place, fees, and procedures to be followed.Sussman v. U.S.
Dep't of Justice, No. 03 CIV.3618(DRH)(ETB), 2006 WL
2850608, at *9 (E.D.N.Y. Sept. 30, 2006), Records are
reasonably described when the description would enable a
professional employee of the agency who was familiar with
the subject area of the request to locate the record with a
reasonable amount of effort, but broad sweeping requests
lacking specificity are insufficient.Tooley v. Bush, No. 06
306(CKK), 2006 WL 3783142, at *14 (D.D.C. Dec.21, 2006)
(citations omitted). Pursuant to FOIA, 5 U.S.C. 552(a)(3)
(A), the Department of Homeland Security (DHS) 10 has
promulgated the following regulation regarding the procedure
to be followed for making requests:
Description of records sought. You must describe the

records that you seek in enough detail to enable Department
personnel to locate them with a reasonable amount of
effort. Whenever possible, your request should include
specific information about each record sought, such as the
date, title or name, author, recipient, and subject matter
of the record. If known, you should include any file
designations or descriptions for the records that you want.
As a general rule, the more specific you are about the
records or type of records that you want, the more likely
the Department will be able to locate those records in
response to your request. If a component determines that
your request does not reasonably describe records, it shall
tell you either what additional information is needed or why
your request is otherwise insufficient, The component also
shall give you an opportunity to discuss your request so that
you may modify it to meet the requirements of this section.
If your request does not reasonably describe the records
you seek, the agency's response to your request may be
delayed.
6 C.F.R. 5.3(b).
Here, plaintiff provided a request for information about a
flight with a particular itinerary on two specific days in
2006. Although the court is unaware of flight patterns, it
takes judicial notice of the fact that Cleveland is not an
obvious way station between Dallas and New York. 11 See
Bovce Motor Lines v. United States, 342 U.S. 337, 344,
72 S.Ct. 329, 96 L.Ed. 367 (1952) (We may, of course,
take judicial notice of geography.). Plaintiff's request
seeking specific information from a limited range of dates
Casev. 1:15-cv-02627-JG-RLM
Document
Davis
U.S. Dept. of Homeland Sec., Slip
Copy (2013)29
2013 WL 3288418
appears to describe the records he sought in sufficient detail

to enable the TSA to locate them with a reasonable amount
of effort. Moreover, the TSA was required, under the DHS's
FOIA regulations, to tell plaintiff what additional information
was needed or why plaintiff's request was insufficient. See
id.(If a component determines that your request does not
reasonably describe records, it shall tell you either what
additional information is needed or why your request is
otherwise insufficient.) (emphasis added). The submissions
from the TSA make clear that no such correspondence took
place. Cf. Tooley, 2006 WL 3783142, at *15 (Consistent
with DHS regulations, DHS requested that Plaintiff provide
DHS with additional information.). The TSA responded
to plaintiff's request for the name records by requesting
information to verify plaintiff's identity. Coates Decl., Ex.
B. The only correspondence it produced regarding the flight
records simply informs plaintiff, no records responsive to
your request were located.Id., Ex. F. 12 These letters give no
indication that the agency afforded plaintiff an opportunity
to discuss your request so that you may modify it to meet
the requirements of this section.6 C.F.R. 5.3(b). The
TSA therefore failed to follow its own procedures regarding
plaintiff's request for the flight records.
*10 Plaintiff made a request that reasonably described the
records he was seeking, and the TSA conducted no search
at all. This record does not support a finding that the TSA
conducted an adequate search for the flight records.
3. Withholding Based on FOIA Exemptions

The TSA searched its No Fly and Selectee Lists, as well
as its Secure Flight database, for the name records, and
issued a Glomar response, refusing to confirm or deny the
existence of responsive records. Coates Decl. 2627.
The Second Circuit recently approved an agency's use of
the Glomar response in situations where to answer the
FOIA inquiry would cause harm cognizable under a[ ] FOIA
exception. Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 68
(2d Cir.2009) (alteration in original) (quoting Gardels v. CIA,
689 F.2d 1100, 1103 (D.C.Cir.1982)). In order to invoke
the Glomar response, an agency must tether its refusal to
respond to one of the nine FOIA exemptions-in other words,
a government agency may ... refuse to confirm or deny the
existence of certain records ... if the FOIA exemption would
itself preclude an acknowledgment of such documents.
Id. (alterations in original) (internal citations and quotation
marks omitted). Like the adequacy of the search inquiry,
an agency asserting the Glomar response has the burden of
proving the applicability of the exemption, which it may

do through a detailed affidavit.Id. In evaluating an agency's
Glomar response, a court must accord substantial weight
to the agency's affidavits, provided [that] justifications for
nondisclosure are not controverted by contrary evidence in
the record or by evidence of ... bad faith. Id. (alterations
in original) (quoting Minier v. CIA, 88 F.3d 796, 800
(D.C.Cir.1996)). The court should attempt to create as
complete a public record as possible ... The [a]gency's
arguments should then be subject to testing by [plaintiff],
who should be allowed to seek appropriate discovery when
necessary ... Id. (alterations in original) (quoting Phillippi,
546 F.2d at 1013).
Here, the TSA tethered its Glomar response to FOIA
exemption 3. Coates Decl. 26, 3538. Exemption 3 applies
to records
specifically exempted from disclosure by statute ... if that
statute
(A) (i) requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for, withholding or refers
to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN
FOIA Act of 2009, specifically cites to this paragraph.
5 U.S.C. 552(b)(3). The TSA cites 49 U.S.C. 114 as
the governing statute, Coates Decl. 36, which provides in
relevant part:
Notwithstanding [FOIA], the Under Secretary shall
prescribe regulations prohibiting the disclosure of
information, obtained or developed in carrying out security
under authority of the Aviation and Transportation Security
Act (Public Law 10771) or under chapter 449 of this title if
the Under Secretary decides that disclosing the information
would
*11 (A) be an unwarranted invasion of personal privacy;
(B) reveal a trade secret or privileged or confidential
commercial or financial information; or
(C) be detrimental to the security of transportation,
49 U.S.C. 114(r). The Coates Declaration states, Because
TSA uses the No Fly and Selectee Lists for passenger
pre-board screening, merely acknowledging the presence
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2013 WL 3288418
or absence of information identifying plaintiff constitutes

[sensitive security information]. Therefore this information
must be withheld under Exemption 3. Coates Decl.
38 (citing 49 C.F.R. 1520.5(b) (9)(h) (identifying as
sensitive security information [i]nformation and sources
of information used by a passenger or property screening
program or system, including an automated screening
system.)). 13
The courts that have examined 114(r) in the context
of FOIA have unanimously concluded that the statute
qualifies as a statute prohibiting disclosure under FOIA
exemption 3. See Elec. Privacy Info. Ctr. v. U.S. Dep't
of Homeland Sec., Civil No. 101992(RCL), 2013 WL
829483, at *45 (D.D.C. Mar.7, 2013); Skurow v. U.S. Dep't
of Homeland Sec., 892 F.Supp.2d 319, 332 (D.D.C.2012);
Tooley, 2006 WL 3783142, at *20;Elec. Privacy Info.
Ctr. v. Dep't of Homeland Sec., 384 F.Supp.2d 100, 109
(D.D.C.2005): see also Pub. Citizen. Inc. v. FAA. 988 F.2d
186, 194 (D.C.Cir.1993) (holding nearly identical language
in 29 U.S.C. 1357(d)(2) qualifies as statute under FOIA
exemption 3); Chowdury v. NW Airlines Corp., 226 F.R.D.
608, 611612 (N.D.Cal.2004) (holding 114(s) applies
to prohibit disclosure under Fed.R.Civ.P. 26(b) (1)). 14
This court similarly determines that the statute establishes
particular criteria for withholding, 5 U.S.C. 552(b)(3)(A)
(ii), and therefore finds that the statute fits within FOIA
exemption 3. Accordingly, the court concludes that the TSA
properly invoked a Glomar response to plaintiff's inquiry,
having tether[ed] its refusal to respond to one of the ...
FOIA exemptions.Wilner, 592 F.3d at 68 (internal quotation
marks omitted); see Skurow, 892 F.Supp.2d at 332 (The
Court finds that the TSA's Glomar response to plaintiff's
FOIA request was entirely proper and squarely within the
realm of its authority.); Tooley, 2006 WL 3783142, at
*20 (finding that Glomar response to request regarding a
person's presence on TSA watch lists was proper under
114(r)); see also Gordon v. FBI, 388 F.Supp.2d 1028,
1037 (N.D.Cal.2005) (Requiring the government to reveal
whether a particular person is on the watch lists would enable
criminal organizations to circumvent the purpose of the watch
lists by determining in advance which of their members may
be questioned.).
Based on the foregoing, the court grants the TSA's motion
for summary judgment as to the name records, and denies
the motion as to the flight records and the electronic storage
records.
b. BOP Request
1. Johnson Declaration
*12 The declaration of Donna Johnson states;
I am a Paralegal Specialist for the
[BOP], Northeast Regional Office,
in Philadelphia, Pennsylvania. I have
held this positions since January
2008. As part of my official duties,
I assist in coordinating responses
to [FOIA] requests made to the
BOP for records maintained in the
Northeast Region. I have access to
the Freedom of Information Act and
Privacy Act (hereinafter, FOIA/PA)
files of the requests processed in
this Office. I am familiar with, and
received training on, the policies and
procedures regarding the processing
and release of information under
the FOIA/PA.... I have reviewed
the Complaint ... and the Amended
Complaint ... and understand that the
Plaintiff, Corey Davis ... alleges the
BOP has failed to comply with or
respond to his requests for information
under FOIA.
Johnson Deczl. 12. The declaration goes on to state,
Records maintained in this Office reflect that BOP's
Northeast Regional Office received two requests submitted
by Plaintiff to the BOP, Central Office .... These were
forwarded to the BOP's Northeast Regional Office for
processing.Id. 3. The declaration then goes on to describe
some of the BOP's general FOIA policies, id. 45,
plaintiff's requests, e.g. id. 6, and the documents released
or withheld in response to plaintiff's request, e.g. id. 8.
Notably, the declaration does not further describe Johnson's
role in either conducting or supervising any of the searches,
asserts no personal knowledge or familiarity with the search
methods' actually used in plaintiff's case, and asserts no
personal knowledge or familiarity with the responsive records
discovered in the processing of plaintiff's request. 15
As discussed above, an affidavit from the agency employee
who actually conducted the search in a FOIA case is not
required to support summary judgment; an affidavit from a
supervisor responsible for the search is sufficient. Carney,
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2013 WL 3288418
19 F.3d at 814. In addition, FOIA declarants may include

statements in their declarations based on information they
have obtained in the course of their official duties.Barnard,
598 F.Supp.2d at 19. Nevertheless, as with all summary
judgment cases, affidavits must be made on personal
knowledge, set out facts that out be admissible in evidence,
and show that the affiant or declarant is competent to
testify on the matters stated,Fed.R.Civ.P. 56(c)(4). In the
FOIA context, a declarant satisfies the personal knowledge
requirement ... if, in his declaration, [he] attest[s] to his
personal knowledge of the procedures used in handling [a
FOIA] request and his familiarity with the documents in
question.Hainey v. U.S. Dep't of Interior, No. 11cv1725
(RLW), 2013 WL 659090, at *5 (D.D.C. Feb. 25, 2013)
(alterations in original) (quoting Hall v. Dep't of Justice, 63
F.Supp.2d 14, 16 n. 1 (D.D.C.1999)). Here, Johnson attests
to familiarity with the procedures regarding the processing
of FOIA requests, but says nothing about her personal
knowledge or familiarity with the documents in question.
Indeed, she asserts no basis for competency to testify about
the BOP's handling of plaintiff's request, other than to say
she reviewed the Complaint and the Amended Complaint.
Johnson Decl. 2.
*13 In Prison Legal News v. Lappin, 603 F.Supp.2d 124
(D.D.C.2009), the District Court of the District of Columbia
encountered a declaration similarly bereft of assertions of
personal knowledge. The BOP, also the defendant agency
in that case, presented the affidavit of a Paralegal Specialist
who, like Johnson, represented that he was familiar with
the procedures utilized by [the Bureau] in responding to ...
FOIA requests.Id. at 127 (alterations in original) (internal
quotation marks omitted). The court noted that the affiant
did not outline the search methods undertaken ..., who
would have conducted the searches, and ... nowhere does
the affiant indicate how he is personally aware of the search
procedures or that he knows they were followed by each of the
Bureau's entities tasked with responding to this request.Id.
The court concluded, All of these deficiencies undermine the
sufficiency of the affidavit.Id.
Here, as in Prison Legal News, the BOP's primary declarant
gives no indication that she is aware of the search procedures
actually used in plaintiff's case or has any familiarity
with the documents uncovered in the search. The court
will not presume personal knowledge of the declarant. See
id.(citing Shaw v. FBI, 749 F.2d 58, 63 n. 2 (D.C.Cir.1984)).
Accordingly, the Johnson declaration is insufficient to
support the BOP's motion for summary judgment.
2. Obando Declarations
The BOP also submitted declarations of Walter Obando,
an SIS Technician at the MDC. Dkt. # 71. Obando
states that he conducted the search for plaintiff's requested
video surveillance materials himself. Id. 4. Accordingly,
his declarations present sufficient evidence of personal
knowledge.
Obando states that with the exception of video recordings of
plaintiff s May 8, 2009 assault on another inmate, id. 5,
and December 21, 2009 cell extraction, Second Supplemental
Deck of Walter Obando, Dkt. # 712, 17, he could not
locate any video surveillance records in response to plaintiff's
request, Obando Decl. 5. 16 The reason for this is that
the MDC retains video surveillance for only thirty-to-sixty
days, after which the recordings are deleted to make space
for newer recordings. Supplemental Decl. of Walter Obando
(Obando Supplemental Decl.) 5. Obando also states that
plaintiff requested telephone recordings and records for calls
placed by plaintiff between February 1, 2009 and December
31, 2010. Obando Decl. 7. Obando states that the MDC
possesses recordings and records of telephone calls placed by
plaintiff during that period. Id. 8, 10.Obando asserts no
basis for withholding any of the materials within the MDC's
possession.
With regard to the video recordings that have been deleted,
FOIA is only directed at requiring agencies to disclose
those agency records for which they have chosen to retain
possession or control.Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 15152, 100 S.Ct.
960, 63 L.Ed.2d 267 (1980) (internal quotation marks
omitted).An agency does not control a record which has
been destroyed, and it is under no obligation to obtain a
duplicate of or to re-create a record in order to fulfill a FOIA
request.James v. U.S. Secret Serv., 811 F.Supp.2d 351, 358
(D.D.C.2011) (citing Nat'l Labor Relations Bd. v. Sears,
Roebuck & Co., 421 U.S. 132, 162, 95 S.Ct. 1504, 44 L.Ed.2d
29(1975)) (internal citation omitted); accord Malinowski v.
FBI.No. 86 Civ. 2239(JFK), 1987 WL 12826, at *1 (S.D.N.Y.
June 17, 1987) (Simply put, if no documents exist, nothing
can be withheld ....). FOIA therefore does not obligate the
BOP to turn over the deleted video recordings.
*14 With regard to those video recordings that were
retained, as well as the audio recordings and records of
telephone calls placed by plaintiff from the MDC, these
10
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2013 WL 3288418
records are within the possession of the MDC, and the BOP
asserts no basis for withholding them. Accordingly, the BOP
is directed to release any of these records to plaintiff that have
not yet been released.
3. Lilly Declaration
The BOP submits a declaration from Sarah Lilly, a legal
assistant for the Beckley Consolidated Legal Center at FCI
Beckley, in response to plaintiff's May 19, 2011 request
(described as Third FOIA request above). Lilly Decl.
1, 5. The Lilly declaration suffers from many of the
same deficiencies as the Johnson declaration, Lilly states
that she ha[s] access to information regarding inmates in
the Bureau of Prisons' custody, including the Freedom of
Information Act/Privacy Act (FOIA/PA) database.Id. 3.
Lilly does not, however, attest to having any familiarity with
plaintiff's FOIA request, based on either personal knowledge
or information gathered in the course of her official duties.
The declaration is therefore insufficient to support the BOP's
motion for summary judgement.
At any rate, Lilly states that the BOP did not produce
responsive records to plaintiff's request because the BOP
misplaced plaintiff's request. Id. 67.Lilly states that
plaintiff was advised that he needed to inform her office
if he wished to pursue his request for records, and the
request was closed when plaintiff did not respond. Id. 8
9.Plaintiff makes clear, however, that he does wish to pursue
this request, as he opposes the BOP's motion for summary
judgment in part on the grounds that he never received a
response to his May 19, 2011 request. See Pl.'s Opp'n Mot.
4347. The BOP is accordingly on notice of plaintiff's desire
to pursue this request. The court therefore directs the BOP
to reopen plaintiffs' May 19, 2011 request and release any
records whose disclosure is mandated under FOIA.
c. FBI Request
As of the filing of defendants' reply brief, the FBI had
closed plaintiff's request for failure to pay outstanding fees,
Supplemental Hardy Decl. 37. Neither party has advised the
court of any change in status from this date. Consequently, the
court will proceed to consider the FBI's motion for summary
judgment on the basis of plaintiff's failure to pay the fees.
of FOIA requests and establishing when such fees should be

waived or reduced. 5 U.S.C. 552(a)(4)(A)(I). In cases such
as plaintiff's, the fees shall be limited to reasonable standard
charge for document search and duplication.Id. 552(a)(4)
(A)(ii)(III). The agency may require advance payment of fees
if the requester has previously failed to pay fees in a timely
fashion, or the agency determines that the fee will exceed
$250. Id. 552(a)(4)(A)(v); see also28 C.F.R. 16.11(i).
*15 On this record, the FBI properly assessed plaintiff a
fee for the search and duplication costs associated with his
request. Plaintiff informed the FBI that he was willing and
had the ability to pay the fees. Hardy Decl. 17. The FBI
subsequently informed plaintiff that it had stopped processing
his request when his fees were overdue. Supplemental Hardy
Decl. 27; id., Ex. W. Plaintiff did not remit payment. Id., Ex,
X. Thereafter, the FBI properly required plaintiff to prepay
the outstanding balance of fees, directing plaintiff's attention
to the relevant regulation. Id., Ex. Y (citing 28 C.F.R.
16.11(i)(2)-(3)). The FBI also gave plaintiff an opportunity
to narrow his request and pay a smaller fee. Id., Ex. AA.
Plaintiff still did not remit payment, and had not done so
as of the date the record on this motion became complete.
Id., 33. 17 The FBI was therefore no longer required to
process plaintiff's request. Accordingly, the FBI's motion for
summary judgment is granted.
CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment is granted in part and denied in part. The motion
is granted as to the TSA's search for the name records, and
denied as to the TSA's search for the flight records and the
electronic storage records. The motion is granted with respect
to the TSA's invocation of the Glomar response. The motion
is denied as to the BOP, except with respect to the video
surveillance recordings that are no longer in the agency's
possession. The motion is granted as to the FBI. To the extent
that defendants' motion for summary judgment is denied on
this record, the denial is without prejudice.
SO ORDERED.
All Citations
FOIA authorizes agencies to promulgate regulations
specifying the schedule of fees applicable to the processing
Slip Copy, 2013 WL 3288418
11
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Footnotes
1
2
3
4
5
6
7
8
10
11
12
13
14
The Glomar response takes its name from the Hughes Glomar Explorer, a ship that was the subject of the FOIA request
at issue in Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976).
It is not clear from the complaint whether plaintiff meant by this request to obtain the video surveillance footage for all
dates between March 12, 2009 and March 31, 2009. His use of the phrase each and every day, Compl. at 5, suggests
this is what he intended. However, the BOP appears to have interpreted his request as seeking video footage only for
two days March 12 and 31, 2009. See Johnson Decl. 6. Plaintiff does not address this discrepancy in his response in
opposition to the BOP's motion for summary judgment. See Pl.'s Reply in Opp'n to Def's Mot. for Summ. J., Dkt. # 62.
The May 8, 2009 assault described in the Obando declaration was the subject of a criminal case in this district, in which
plaintiff was convicted of assault. See United States v. Davis, No. 10CR100(JG).
In a subsequent declaration, Obando stated that any video and audio recording that are not retained for administrative
or evidentiary purposes are deleted and are not backed up on hard drives. Supplemental Decl. of Walter Obando, Dkt.
# 711, 57, 10.
Plaintiff states this request was made, on May 31, 2011, see Am. Compl. at 2; Pl.'s Opp'n Mot. 43; however,
documentation provided with the Declaration of Sarah Lilly indicates the request was dated May 19, 2011. Decl. of Sarah
Lilly (Lilly Decl.), Dkt. # 76, Ex. A.
One of these requests was made to the FBI's Dallas Field Office. See Supplemental Decl. of David Hardy (Supplemental
Hardy Decl.), Dkt. # 79, Ex. I. Plaintiff stated in his third supplemental complaint that the Dallas Field Office never
responded to his request. See Dkt. # 39, at 3. On December 5, 2011, however, Hardy wrote to plaintiff and informed him
that his request to the Dallas Field Office was being aggregated with his original request. Supplemental Hardy Decl., Ex. J.
SeeNo. 07CR011 (JCH).
The Serv. Women's Action Network court also cited Adamowicz v. IRS, 672 F.Supp.2d 454, 463 (S.D.N.Y.2009), as
finding sufficient the declaration of a supervisor who delegated a search to his subordinate, who, in turn, delegated to
another employee. 888 F.Supp.2d at 244. However, this court finds Adamowicz distinguishable since the declarant in
that case was the official actually in charge of processing the plaintiff's specific request, rather than a general supervisor.
See672 F.Supp.2d at 463 (Dichter was the officer assigned to process plaintiff's FOIA request.).Adamowicz therefore
clearly falls within Carney's holding that [a]n affidavit from an agency employee responsible for supervising a FOIA
search is all that is needed ...; there is no need for the agency to supply affidavits from each individual who participated
in the actual search.19 F.3d at 814.
The declaration also states that one component, the Office of Law Enforcement/Federal Air Marshal Service (OLE/
FAMS), did conduct a search for reports for March 27, 2006 and March 28, 2006 that contained the names of the airports
provided by plaintiff. Id. 18.The TSA also queried the Claims Management Systems at DallasFort Worth International
Airport and New YorkLaGuardia International Airport, but these searches appear just to have sought the name records,
not the flight records. See id. 2829, 3132.
The TSA was merged into the DHS in 2003, pursuant to the Homeland Security Act of 2002, Pub.L. No. 107296, 116
Stat. 2135 (2002). The TSA remained a distinct agency until two years after the date of enactment of the Homeland
Security Act, November 25, 2002. See6 U.S.C. 234(b); see also49 C.F.R, 1507.1 (The procedures governing access
to, and correction of, records in a TSA system of records are set forth in 6 CFR part 5, subpart B.).
The court also notes (but does not rely upon for the purposes of deciding this motion) that an internet search for flights
from DallasFort Worth to New York LaGuardia shows two such flights with a stopover in Cleveland on a given day:
United Flight 4518 (departing DallasFort Worth at 2:35 P.M.) and United Flight 4627 (departing DallasFort Worth at
7:50 P.M.).See Kayak, http://www.kayak.com/# /flights/DFWLGA/20130620 (last visited June 19, 2013).
This letter was written after the commencement of litigation, supporting plaintiff's allegation in the original complaint that
[t]he TSA has not responded in any way to the Plaintiff's requests for releasable records.Compl. at 4.
The TSA does not discuss its search of the Secure Flight database in the portion of the Coates declaration discussing
the basis for invoking the Glomar response. Its description of the Secure Flight program makes clear, however, that
Secure Flight relies upon data from the No Fly and Selectee List. Coates Decl. 27. Consequently, the court considers
the TSA's arguments in support of its Glomar response as applying to both the No Fly and Selectee Lists and the Secure
Flight database.
Several of these cases refer to 114(s), which formerly authorized the TSA to prohibit the disclosure of certain material
found to be detrimental to the security of transportation; in 2007, this subsection was redesignated as 114(r). Pub.L.
110161 568, 121 Stat 1844 (2007).See Elec. Privacy Info. Ctr., 2013 WL 829483 at *4 n. 4.
12
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15
16
17
Johnson's supplemental declaration, to which a Vaughn Index is annexed, provides no additional information from which
the court could infer her competency to testify regarding the processing of plaintiff's request. See Supplemental Decl.
of Donna Johnson, Dkt. # 75, at 1.
The other video recordings in question were the subject of an order this court entered in a miscellaneous case filed by
plaintiff on April 23, 2010. See Davis v. Terrell, No. 10mc0292. In thatcase, the court ordered the MDC on June 15,
2011, to preserve any materials still in existence upon the filing of the order. Id ., Dkt. # 21, at 3. However, as all the
recordings requested by plaintiff predated the order by more than sixty days, according to Obando, such recordings would
have been deleted pursuant to the MDC's retention policies. Obando Supplemental Decl. 5.
The record does not contain any indication that plaintiff sought a fee waiver from the FBI under 5 U.S.C. 552(a)(4)(A)
(iii), which provides that the fees shall be waived or reduced if disclosure of the information is in the public interest ...
and is not primarily in the commercial interest of the requester.The court notes that, although plaintiff's request is not
primarily commercial, the nature of plaintiff s request seeking information about the FBI's investigation of plaintiff himself
makes it hard to fathom how plaintiff could show[ ] that disclosure to him will have a sufficient breadth of benefit beyond
his own interest,Carney, 19 F.3d at 814 n. 4 (internal quotation marks omitted), so as to qualify for a fee waiver. Cf.
Banks v. Dep't of Justice, 605 F.Supp.2d 131, 139 (D.D.C.2009) (A requester's private interest is not relevant to the fee
waiver analysis, and an attack on a criminal conviction is a private interest.).
End of Document
13
Case
1:15-cv-02627-JG-RLM
Document
29 ---Filed
02/12/16
Main
Street
Legal Services, Inc. v. National
Sec. Council,
F.3d ---(2016)
Where there is dispute as to whether requested

entity is agency within meaning of Freedom
of Information Act (FOIA), burden on that
preliminary legal question rests with party
seeking production of records. 5 U.S.C.A.
552(f)(1).
2016 WL 305175
Only the Westlaw citation is currently available.
United States Court of Appeals,
Second Circuit.
MAIN STREET LEGAL SERVICES,
INC., PlaintiffAppellant,
v.
NATIONAL SECURITY
COUNCIL, DefendantAppellee.
Cases that cite this headnote

[2]
Records
Agencies or Custodians Affected
National Security Council (NSC) was not
agency subject to Freedom of Information
Act (FOIA); NSC's sole function was to advise
and assist President, and statute creating NSC
conferred no authority on it independent of
President. 5 U.S.C.A. 552(f)(1); National
Security Act of 1947, 101, 50 U.S.C.A. 3021.
No. 133792CV.
|
Argued: March 2, 2015.
|
Decided: Jan. 26, 2016.
Synopsis
Background: Requestor brought action under Freedom of
Information Act (FOIA) against National Security Council
(NSC) seeking records related to killing and attempted
killing by drone strikes of United States citizens and foreign
nationals. The United States District Court for the Eastern
District of New York, Vitaliano, J., 962 F.Supp.2d 472,
dismissed complaint, and requestor appealed.
Page 16 of 40 PageID #: 1657

[3]
Records
Agencies or Custodians Affected
National Security Council (NSC) System,
including NSC Staff, Board for Low Intensity
Conflict, Committees on Foreign Intelligence
and Transnational Threats, and non-statutory
committees, was not agency subject to
Freedom of Information Act (FOIA), even
though NSC had promulgated regulations in
past; relevant statutory provisions provided
for various parts of NSC System to perform
functions that advised and assisted Council
and President, and did not grant any authority
independent of President, President did not grant
NSC System any independent authority, NSC
regulations imposed no duties or restrictions
on private persons or government entities,
and executive order that permitted NSC to
promulgate regulations had been revoked. 5
U.S.C.A. 552(f)(1); National Security Act of
1947, 101, 50 U.S.C.A. 3021.
Holdings: The Court of Appeals, Reena Raggi, Circuit Judge,

held that:
[1] NSC was not agency subject to FOIA;
[2] NSC System was not agency subject to FOIA; and
[3] district court did not abuse its discretion in denying
discovery.
Affirmed.
Wesley, Circuit Judge, concurred and filed opinion.

West Headnotes (8)
[4]
[1]
Records
Evidence and Burden of Proof
United States
Executive Authority, Powers, and Functions
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If Congress confers authority upon agency
beyond President's own, President may still give
directions to agency, and he can usually fire
recalcitrant agency head, but he cannot take
away agency's statutory authority or exercise it
himself.
[5]
[6]
Federal Courts
Jurisdiction, Powers, and Authority in
General
On appeal from a judgment entered in the Eastern District of

New York (Vitaliano, J.) dismissing plaintiff's complaint for
failure to state a claim under the Freedom of Information Act
(FOIA), plaintiff challenges the district court's holding that
the National Security Council is not an agency subject to
the FOIA. 5 U.S.C. 551(1), 552(f)(1).
AFFIRMED.
To dismiss claim on merits, or to affirm such

dismissal, court must have jurisdiction.
Attorneys and Law Firms
Ramzi Kassem, Main Street Legal Services, Inc. (Douglas

Cox, City University of New York School of Law, on the
brief), Long Island City, New York, for PlaintiffAppellant.
Records
Judicial Enforcement in General
If entity from which records are sought is
not agency within meaning of Freedom of
Information Act, court properly dismisses FOIA
claim on merits, not for lack of subject-matter
jurisdiction. 5 U.S.C.A. 552(a)(4)(B), 552(f)
(1).
Jaynie Randall Lilley, Attorney (Stuart F. Delery, Assistant

Attorney General, Mark B. Stern, Attorney, on the brief),
Civil Division, United States Department of Justice,
Washington, D.C., for Robert L. Capers, United States
Attorney for the Eastern District of New York, Brooklyn,
New York, for DefendantAppellee.
Before: RAGGI, WESLEY, and LYNCH, Circuit Judges.
Opinion
REENA RAGGI, Circuit Judge:
[7]
Federal Civil Procedure

Scope
District court did not abuse its discretion in
denying discovery in Freedom of Information
Act (FOIA) action against National Security
Council (NSC), where publicly available
materials were sufficient for proper adjudication
of question of whether NSC was agency
subject to FOIA's requirements. 5 U.S.C.A.
552(a)(4)(B), 552(f)(1).
[8]
Federal Civil Procedure

Grounds and Objections
Plaintiff who has failed adequately to state
claim is not entitled to discovery. Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
*1 This appeal requires us to decide whether the National

Security Council (NSC) is an agency subject to the
retention and disclosure requirements of the Freedom of
Information Act (FOIA), Pub.L. No. 89487, 80 Stat. 250
(1966) (codified as amended at 5 U.S.C. 552). The United
States District Court for the Eastern District of New York
(Eric N. Vitaliano, Judge ) concluded that it was not and,
on August 7, 2013, entered judgment dismissing this FOIA
action to compel the production of certain NSC minutes and
records, particularly those related to targeted drone strikes.
See Main St. Legal Servs. v. Nat'l Sec. Council, 962 F.Supp.2d
472 (E.D.N.Y.2013).
On de novo review, see Phillips v. City of New York, 775
F.3d 538, 542 (2d Cir.2015), we construe the agency
provision of the FOIA, 5 U.S.C. 551(1), 552(f)(1), the
function provisions of the NSC's statute, 50 U.S.C.
3021(a), and the current presidential directive organizing
the National Security Council System (NSC System), see
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Barack Obama, Presidential Policy Directive-1 (PPD1),
at 1 (2009), available at https://www.hsdl.org/?view & did
34560, among other available legal sources, and we conclude
that the NSC is not an agency subject to the FOIA. Because
we further construe the FOIA's agency requirement to relate
to the court's remedial power rather than to its subject-matter
jurisdiction, we conclude that the district court properly
granted dismissal for failure to state a claim, seeFed.R.Civ.P.
12(b)(6), rather than for lack of jurisdiction, seeFed.R.Civ.P.
12(b)(1). Finally, we conclude that the district court acted
within its discretion in granting dismissal without discovery.
We, therefore, affirm the challenged judgment.
I. Background
A. The FOIA's Disclosure Requirement
[1] The FOIA, which took effect in July 1967, establishes
record retention and disclosure requirements for federal
agencies. See5 U.S.C. 552. Of particular relevance here
is the requirement that agencies promptly [make] available
to any person, upon request, such reasonably described
records as are not already publicly available and not subject
to specific exemptions. Id. 552(a)(3)(A); see id. 552(b)
(identifying exemptions). A person who thinks that an agency
has improperly withheld records subject to FOIA disclosure
may seek an order of production from a district court, which
will review the matter de novo, placing the burden on the
agency to defend its non-disclosure decisions. See id. 552(a)
(4)(B). Where, as here, there is a dispute as to whether the
requested entity is an agency, the burden on that preliminary
legal question rests with the party seeking production. See
Armstrong v. Exec. Office of the President, 90 F.3d 553, 565
(D.C.Cir.1996). 1
B. The National Security Council

In the National Security Act of 1947, Pub.L. No. 80253,
101, 61 Stat. 495, 49697 (codified as amended at 50
U.S.C. 3021), Congress created a National Security Council
(Council) and assigned it [t]he function ... to advise the
President with respect to the integration of domestic, foreign,
and military policies relating to the national security so as to
enable the military services and the other departments and
agencies of the Government to cooperate more effectively
in matters involving the national security, 50 U.S.C.
3021(a). 2 The statute denominates the President as the
presiding officer of the Council, on which serve certain
statutorily identified officials, including the Vice President
and the Secretaries of State, Defense, and Energy, as well as

other persons appointed by the President. See id. 3
C. Main Street's FOIA Request to the NSC

*2 On November 27, 2012, plaintiff Main Street Legal
Services, Inc. (Main Street), a non-profit law firm within
the City University of New York School of Law, Compl.
4, submitted a FOIA request to the NSC seeking production
of (1) [a]ll records related to the killing and attempted killing
by drone strike of U.S. citizens and foreign nationals, and (2)
[a]ll National Security Council meeting minutes taken in the
year 2011, J.A. 25. 4 The NSC denied the request by letter
dated December 14, 2012, stating that [a]s an organization in
the Executive Office of the President that advises and assists
the President, the National Security Council is not subject to
the Freedom of Information Act. Id. at 29.
Main Street disagreed and, on February 21, 2013, it
commenced this FOIA action in the Eastern District of New
York, invoking 5 U.S .C. 552(a)(4)(B) to seek a judicial
order compelling the NSC to produce the requested records.
The NSC moved to dismiss the complaint both for failure
to state a claim upon which relief could be granted and for
lack of subject-matter jurisdiction, arguing that it was not an
agency subject to the FOIA. 5 U.S.C. 551(1), 552(f)(1);
seeFed.R.Civ.P. 12(b)(1), (b)(6).
The district court agreed that the NSC was not an agency
and dismissed the case on the merits. On August 7, 2013, it
entered the judgment in favor of the NSC from which Main
Street now appeals. See Main St. Legal Servs. v. Nat'l Sec.
Council, 962 F.Supp.2d at 47879.
II. Discussion
A. The FOIA Definition of Agency
As the parties acknowledge, the FOIA applies only to
federal agencies. Prior to 1974, the FOIA did not itself
define agency but, rather, relied on the Administrative
Procedure Act, which defines agency as each authority of
the Government of the United States, whether or not it is
within or subject to review by another agency, subject to
certain exceptions not applicable here. 5 U.S.C. 551(1).
In 1974, Congress amended the FOIA to clarify that the
551(1) definition of agency, as applied to the FOIA, includes
any executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the executive branch of the Government
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(including the Executive Office of the President ), or any
independent regulatory agency. FOIA Amendments of 1974,
Pub.L. No. 93502, sec. 3, 552(e), 88 Stat. 1561, 1564
(codified as amended at 5 U.S.C. 552(f)(1)) (emphasis
added). Main Street argues that the highlighted FOIA
language is unambiguous and, therefore, dispositive of the
single issue on this appeal: the NSC is an establishment in the
executive branch of the Government within the Executive
Office of the President and, therefore, an agency subject
to the FOIA.
Generally, if the intent of Congress is clear and
unambiguously expressed by the statutory language at issue,
that would be the end of our analysis. Zuni Pub. Sch. Dist.
No. 89 v. Dep't of Educ., 550 U.S. 81, 93, 127 S.Ct. 1534, 167
L.Ed.2d 449 (2007); see United States v. Colasuonno, 697
F.3d 164, 173 (2d Cir.2012). The Supreme Court, however,
has not strictly applied this rule in construing the abovehighlighted language of the FOIA. Rather, in Kissinger v.
Reporters Committee for Freedom of the Press, 445 U.S.
136, 15557, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the
Court looked to the FOIA's legislative history in concluding
that notes made by the President's National Security Advisor
were not agency records subject to the FOIA. The history
referenced in Kissinger indicates that Congress did not intend
for the President's immediate personal staff or units in the
Executive Office [of the President] whose sole function is
to advise and assist the President to be included within
the term agency under the FOIA. Id. at 156 (quoting
H.R.Rep. No. 931380 (1974) (Conf.Rep.), reprinted in
Subcomm. on Gov't Info & Indiv. Rights of the H. Comm.
on Gov't Operations, 94th Cong., Freedom of Information
Act and Amendments of 1974 (P.L. 93502), Source Book:
Legislative History, Texts, and Other Documents (FOIA
Source Book ) 219, 232 (Joint Comm. Print 1975), available
at http://1.usa.gov/1FMmbfm). Thus, to decide this appeal,
we must look beyond the text of 552(f)(1) and consider
whether the NSC is a unit within the Executive Office of the
President whose sole function is to advise and assist the
Chief Executive. 5
B. The Soucie Test for Determining a FOIA Agency

*3 In making such a function determination, we are mindful
that Congress derived the standard quoted in Kissinger from
Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971). SeeH.R.Rep.
No. 931380 (Conf.Rep.), reprinted in FOIA Source Book
at 232 (With respect to the meaning of the term Executive
Office of the President the conferees intend the result
reached in Soucie v. David. (citation omitted)); see also

Armstrong v. Exec. Office of the President, 90 F.3d at
558 (recognizing Congress's intent to codify Soucie in
1974 amendments' agency definition); Meyer v. Bush, 981
F.2d 1288, 1291 (D.C.Cir.1993) (same). Soucie construed
the Administrative Procedure Act's definition of agency,
referencing government authority, to reach executive
branch units that have substantial independent authority
in the exercise of specific functions, 448 F.2d at 1073
(citing 5 U.S.C. 551(1)), but not to reach units whose
sole function [is] to advise and assist the President, id.
at 1075. Soucie applied these two prongs of analysis to the
Office of Science and Technology, a unit within the Executive
Office of the President, and concluded that it was an agency
subject to the FOIA because, in addition to advising and
assisting the President, the Office had inherited program
evaluation functions from the National Science Foundation
that Congress had imposed as a delegation of some of its
own broad power of inquiry. Id. It was based on the latter
independent authority, derived from a source other than the
President, that the Office was held to be an agency. See id.
Thus, although the Supreme Court in Kissinger quoted
only the sole function prong of the Soucie analysis, we
understand it to have recognized Congress's intent to codify
the entirety of the Soucie test for entities within the Executive
Office of the President. We therefore consider both the sole
function and substantial independent authority prongs of
Soucie analysis in deciding whether the NSC is an agency
subject to the FOIA.
C. The D.C. Circuit's Experience with Soucie Analysis

Before ourselves applying Soucie analysis to the NSC, we
acknowledge the considerable experience of the Court of
Appeals for the District of Columbia Circuit in applying
this analysis to various units within the Executive Office of
the President. Since Soucie, that court has twice held such
units to be agencies. See Pacific Legal Found. v. Council on
Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980) (Council on
Environmental Quality); Sierra Club v. Andrus, 581 F.2d 895
(D.C.Cir.1978) (Office of Management and Budget), rev'd on
other grounds sub nom. Andrus v. Sierra Club, 442 U.S. 347,
99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Once, in the absence of
any dispute on the point, that court appears to have assumed a
unit's agency status, while nevertheless holding the requested
document exempt from FOIA disclosure. See Center for Int'l
Envtl. Law v. Office of U.S. Trade Representative, 718 F.3d
899 (D.C.Cir.2013) (Office of Trade Representative). In five
other cases, however, the D.C. Circuit has held units within
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the Executive Office of the President-including the NSC
not to be agencies. See Citizens for Responsibility & Ethics in
Washington v. Office of Admin., 566 F.3d 219 (D.C.Cir.2009)
(Office of Administration); Armstrong v. Exec. Office of the
President, 90 F.3d 553(NSC) 6 ; Sweetland v. Walters, 60
F.3d 852 (D.C.Cir.1995) (Executive Residence) 7 ; Meyer v.
Bush, 981 F.2d 1288 (Task Force on Regulatory Relief);
Rushforth v. Council of Econ. Advisers, 762 F.2d 1038
(D.C.Cir.1985) (Council of Economic Advisers).
The function of the Council shall be to advise the President

with respect to the integration of domestic, foreign, and
military policies relating to the national security so as to
enable the military services and the other departments and
agencies of the Government to cooperate more effectively
in matters involving the national security.
Main Street criticizes this three-factor approach for giving

insufficient attention to the sole function prong of Soucie.
50 U.S.C. 3021(a) (emphasis added). Such use of the

definite article to describe the function of the Council in
the legislation's first subsection makes clear that the sole
function statutorily conferred on the Council is advisory
to, and not independent of, the President. See Rumsfeld v.
Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d
513 (2004) (stating that statutory use of definite article
indicates that there is generally only one of referenced
noun). This is only reinforced by the fact that the President is
the presiding member of the Council. See50 U.S.C. 3021(a).
Council members may head government departments with
independent authority in their respective spheres. Indeed,
it is precisely for that reason that their advice is sought
with respect to the integration of diverse policies relating
to national security, i.e., to secure cooperat[ion in] more
effectively exercising their respective departments' authority
in matters involving the national security. Id. But when
serving as the Council itself, their sole function is advisory to
the President. Nothing in the legislation confers non-advisory
functions on the Council as a body, much less any authority
See Appellant's Br. 4047. 8 We need not here decide when, if
independent of the President. 10
*4 In certain of these cases, including the one in which

it concluded that the NSC was not an agency, the D.C.
Circuit has conducted Soucie analysis by reference to three
factors: (1) how close operationally the unit at issue is to
the President, (2) whether [the unit] has a self-contained
structure, and (3) the nature of its delegat[ed] authority.
Meyer v. Bush, 981 F.2d at 1293; Armstrong v. Exec. Office
of the President, 90 F.3d at 558. Thus, as to the NSC, the D.C.
Circuit recognized its self-contained structure to tilt in favor
of agency status, but concluded that this was outweighed by
its close operational proximity to the President and by its lack
of authority to do more than advise and assist the President in
making or implementing his policies. See Armstrong v. Exec.
Office of the President, 90 F.3d at 55965.
at all, this trio of factors might be useful to Soucie analysis. 9

With the benefit of the D.C. Circuit's experience applying
Soucie to units within the Executive Office of the President,
but without being controlled by its three-factor analysis (or
by alternatives proposed in other D.C. Circuit opinions), we
proceed to our own consideration of whether the NSCeither
the Council specifically or the NSC System generallyis an
agency subject to the FOIA.
D. The Council Is Not an Agency Subject to the FOIA

1. The Council's Sole Statutory Function Is To Advise and
Assist the President
[2] To determine the function of a statutorily created entity
such as the National Security Council, a court properly
begins with the authorizing legislation. See Citizens for
Responsibility & Ethics in Washington v. Office of Admin.,
566 F.3d at 224 (beginning analysis with entity's charter
documents). In creating the Council, Congress stated as
follows:
*5 This contrasts with Congress's treatment of other units

within the Executive Office of the President, such as the
Office of Science and Technology and the Office of the Trade
Representative. Soucie recognized the former as an agency
[b]y virtue of its independent function of evaluating federal
programs, which reflected Congress's statutory delegat[ion
of] some of its own broad power of inquiry to that entity.
Soucie v. David, 448 F.2d at 1075 (emphasis added). As for
the Office of the Trade Representative, which did not dispute
its agency status in arguing for a FOIA exemption in Center
for International Environmental Law v. Office of U.S. Trade
Representative, 718 F.3d 899, Congress statutorily granted
it independent authority to enforce trade agreements in 19
U.S.C. 2411(c).
2. The Statute's Additional Functions Subsection

Confers No Authority on the Council Independent of the
President
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Nor can a grant of independent authority be located
in the next, Additional functions, subsection of the
National Security Act, which imposes duties on the Council,
[i]n addition to performing such other functions as the
President may direct. 50 U.S.C. 3021(b). To explain,
we reproduce the full text of the subsection in the margin,
highlighting it so as to show three parts. 11 The opening
clauseunderscoredimplicitly recognizes the President's
authority to assign additional functions to the Council (the
other functions' clause). The enumerated partregular
typefaceidentifies two functions that Congress requires the
Council to perform in any event (the enumerated functions
provisions). Between these two parts is a thirditalicized
specifying the purpose for which the Council is to perform
its additional functions: more effectively coordinating the
policies and functions of the departments and agencies of the
Government relating to the national security (the purpose
phrase).
This structure confirms that the Council is more appropriately
viewed as a forum attended by actors exercising independent
authority within their respective spheres, not an actor itself,
much less one exercising authority independent of the
President. The enumerated functions provisions make it the
Council's duty to assess, appraise, and consider certain
security matters, but only subject to the direction of the
President and in order to make recommendations to the
President in connection therewith. Recommendations do not
manifest an exercise of independent authority. Rather, they
are advice to the person with authority to act on themhere,
the President. Thus, 3021(b)'s [a]dditional functions are
best understood simply to particularize the overall advisory
function of 3021(a).
The purpose phrase of 3021(b) further supports this
conclusion. Its coordination objectivemore effectively
coordinating the policies and functions of government
entities relating to the national securityechoes the
integration and cooperation goals of 3021(a)'s advisory
function. Indeed, coordination is a term long associated
with the NSC and with the integration objectives of the
National Security Act, referenced supra note 2. See National
Security Act of 1947, tit. I, 61 Stat. at 496 (entitling portion
of National Security Act creating NSC Coordination for
National Security); H.R.Rep. No. 80961, at 3 (1947)
(stating that NSC would meet urgent need for a continuous
program of close coordination between our domestic, foreign,
and military policies); S.Rep. No. 80239, at 9 (1947)
(stating that NSC is intended to meet need for closer
and continuous coordination on a high level within the

Government of our domestic, foreign, and military policy);
PPD-1, at 2 (stating that NSC shall be President's principal
means for coordinating executive departments and agencies
in the development and implementation of national security
policy). Thus, coordination within the Council involves no
exercise of authority independent of the President, or even of
the agencies whose heads are Council members. Certainly,
there is no mechanism for a majority of the Councilin the
absence of a presidential directiveto compel member action
within the departments they head. Rather, coordination
within the Council is the means by which the President can
secure both the collective national security recommendations
of department heads and their cooperation in integrating
his policies across various parts of government. The former
function is solely to advise, the latter solely to assist. 12
*6 With this understanding, we conclude that where
a statutory subsection identifying [t]he function of the
Council as advising the President, 50 U.S.C. 3021(a), is
followed by a subsection particularizing duties to coordinate
that advice, language signaling that the specified duties are
not exclusive, but in addition to such other functions as
the President may direct, cannot reasonably be construed
as a congressional delegation of independent authority to
the Council. As the Supreme Court has observed, Congress
does not ... hide elephants in mouseholes. Whitman v.
Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S.Ct. 903,
149 L.Ed.2d 1 (2001). Thus, when we consider 3021(b)'s
other functions clause in context, see generally Utility
Air Regulatory Grp. v. EPA, U.S. , , 134
S.Ct. 2427, 2441, 189 L.Ed.2d 372 (2014) (referencing
fundamental construction canon that statutory language be
read in context, with view to place in overall statutory scheme
(internal quotation marks omitted)), we construe it to mean
that for the purpose of more effectively coordinating the
policies and functions of government entities relating to
the national security, the President may direct the National
Security Council to provide him with particular advice and
assistance beyond that specifically identified in that statutory
subsection.
In sum, we conclude that the sole statutory authority
conferred on the Council is to advise and assist the President,
both in general, as stated in 3021(a), and for the specific
purpose of effectively coordinating that advice and assistance
as provided in 3021(b). 13 Because the Council lacks any
authority independent of the President, it is not an agency
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subject to the FOIA. See Soucie v. David, 448 F.2d at 1075
(looking to statutory functions to determine agency status).
3. Non-Statutory References to the NSC as an Agency

Provide No Assistance Here, Having Occurred When the
NSC Was Statutorily Authorized To Direct the CIA, Which
Authority Has Now Been Withdrawn
In urging otherwise, Main Street highlights certain nonstatutory references to the NSC as an agency. First, it
cites the House Report on the 1974 FOIA amendments,
seeH.R.Rep. No. 93876 (1974), reprinted in FOIA Source
Book 121, 128, which included the NSC on a list of
entities expected to come within the proposed reference to
establishment in the Executive Office of the President. 14
Second, it observes that, in Kissinger v. Reporters Committee
for Freedom of the Press, the Supreme Court cited this House
Report as support for an assumption that the NSC was an
agency subject to the FOIA. See 445 U.S. at 156. Third, it
points to a 1978 opinion from the Department of Justice's
Office of Legal Counsel (OLC) concluding that the NSC is
an agency subject to the FOIA. See Freedom of Information
Act (5 U.S.C. 552)-Nat'l Sec. CouncilAgency Status Under
FOIA, 2 Op. O.L.C. 197 (1978). None of these references will
bear the weight assigned to them by Main Street.
*7 The House Report was supplanted by the Conference
Report, which made no attempt to identify entities within
the Executive Office of the President that were or were not
subject to the FOIA. See generally Slayton v. Am. Express
Co., 604 F.3d 758, 771 (2d Cir.2010) (noting that conference
report is generally the most reliable evidence in legislative
history of congressional intent because it represents the final
statement of the terms agreed to by both houses (internal
quotation marks omitted)). Rather, the Conference Report
cites Soucie v. David in expressing the conferees' intent not to
reach the President's immediate personal staff or those units
of the Executive Office whose sole function is to advise or
assist the President. SeeH.R.Rep. No. 931380 (Conf.Rep.),
reprinted in FOIA Source Book 232. As noted supra at [9
10], it is this Conference Report on which the Supreme Court
relied in construing 552(f)'s reach by reference to the Soucie
standard in Kissinger.
Kissinger 's assumption that the NSC was an agency was
made only arguendo in concluding, nonetheless, that the
plaintiffs in that case had failed properly to make a FOIA
request for any NSC records. See Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. at 15657. Such
an assumption is not even dictum and, thus, hardly resolves

this appeal.
As for the OLC Opinion, it was withdrawn in 1993,
supplanted by the conclusion that the NSC was not an
agency subject to the FOIA. See Memorandum from Walter
Dellinger, Acting Ass't Att'y Gen., Office of Legal Counsel,
to Alan J. Kreczko, Spec. Ass't to the President and Legal
Adviser, Nat'l Sec. Council (Sept. 20, 1993).
The change in OLC positions is attributable, at least in part,
to a fact that undermines Main Street's reliance on all three
cited references. See id. at 67. At the time of these references,
the NSC was statutorily authorized to direct the Central
Intelligence Agency (CIA). See National Security Act of
1947 102(a), (d), 61 Stat. at 49798 (creating CIA under
NSC and setting forth CIA duties under the direction of
the National Security Council). That authority, however,
has now been withdrawn. See Intelligence Organization Act
of 1992, Pub.L. No. 102496, tit. VII, 704, 106 Stat.
3188, 3189 (removing language that CIA was under NSC);
see also National Security Reform Act of 2004, Pub.L. No.
108458, tit. I, 1011, 118 Stat. 3643, 364362 (removing
remaining NSC authority over CIA). In short, the cited
references to the NSC as an agency were made at a time
when the NSC oversaw the CIA, which is itself an agency
subject to the FOIA. See CIA v. Sims, 471 U.S. 159, 105 S.Ct.
1881, 85 L.Ed.2d 173 (1985) (applying FOIA to CIA); Center
for Constitutional Rights v. CIA, 765 F.3d 161 (2d Cir.2014)
(same). Those references say nothing about whether the NSCas it exists today-functions as an agency under the Soucie
standard. Accordingly, they do not assist, much less dictate,
resolution of this appeal.
*8 We, therefore, adhere to our conclusion, reached by
applying Soucie analysis to the text of the National Security
Act, that the Council is not an agency subject to the FOIA
because its sole statutory function is to advise and assist the
President. 15
E. The NSC System Is Not an Agency Subject to the FOIA

[3] We now consider whether, even if the Council itself is
not an agency subject to the FOIA, a different conclusion
might apply to the NSC System. Parts of the NSC System
are created by statute, specifically, the NSC Staff, the Board
for Low Intensity Conflict, and the Committees on Foreign
Intelligence and Transnational Threats. See50 U.S.C.
3021(c), (g)-(i). 16 Parts are created by presidential directive.
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See PPD-1. We address the two separately but, in the end,
reach a single conclusion: the NSC System is not an agency
subject to the FOIA. 17
1. The NSC System Is Not Statutorily Granted Any

Authority Independent of the President
In considering what statutory authority Congress conferred
on staff, boards, and committees of the NSC System, we are
ever mindful that atop this system sits the Council, which,
for reasons just discussed, we conclude has been granted no
statutory authority independent of the President but, rather,
has been assigned only the function of advising and assisting
the President. This gives rise to a strong presumption that
Congress intended to confer no more authority on the NSC
System than it conferred on the Council at its head. The
relevant statutory text, which we now discuss, warrants no
different conclusion.
a. NSC Staff
The National Security Act provides for the NSC to have a
staff to perform such duties as may be prescribed by the
Council in connection with the performance of its functions.
50 U.S.C. 3021(c). As we have already explained, the
Council's functions are solely advisory; it is granted no
authority independent of the President. Thus, it can hardly
confer on its staff more authority than it has itself. Any
duties the NSC assigns to its staff in connection with the
performance of its functions, therefore, must also be deemed
only to advise, or to assist in advising or assisting.
50 U.S.C. 3021(g)). The principal, and sole statutorily

identified, function of this board is to coordinate the policies
of the United States for low intensity conflict. 50 U.S.C.
3021(g).
*9 We have already explained that coordination
within the NSC is a means for securing national
security policy recommendations to the President (advice)
and consistent implementation of the President's policy
decisions (assistance) across government departments. Such
coordination does not contemplate the NSC's exercise of
authority independent of the President. See supra at [2021].
Thus, because coordination is the sole function statutorily
assigned to the Board for Low Intensity Conflict, and because
the statute gives the Board no authority to dictate to persons
or departments, we conclude that the Board is not an agency
subject to the FOIA.
c. The Committee on Foreign Intelligence

In 1996, Congress added a Committee on Foreign Intelligence
to the NSC System. See Intelligence Renewal and Reform
Act of 1996, Pub.L. No. 104293, tit. VIII, 802, 110
Stat. 3474, 347475 (codified as amended at 50 U.S.C.
3021(h)). This Committee is composed of the President's
National Security Advisor, who serves as chair, the Director
of National Intelligence, the Secretaries of State and Defense,
and such other members as the President may designate.
See50 U.S.C. 3021(h)(2). Its sole statutory function is to
assist the NSC and, thereby, the President, by undertaking
certain activities, set forth fully in the margin. Id. 3021(h)
(3). 18
In this respect, we emphasize that the relevant Soucie inquiry

is not whether an entity enjoys a measure of discretion, or
independence, in how it provides advice or assistance. That is
true to some degree of most advisers and assistants. Rather,
Soucie asks whether an entity does more than render advice
or assistance to the President-whether it exercises authority
independent of the President, particularly with respect to
individuals or other parts of government. Nothing in
3021(c) admits a conclusion that the NSC staff exercises any
such independent authority.
b. The Board for Low Intensity Conflict

In 1986, Congress amended the National Security Act to
provide for the President's establish[ment] within the NSC
System of a board to be known as the Board for Low
Intensity Conflict. J. Res. of Oct. 30, 1986, Pub.L. No.
99591, 9115(f), 100 Stat. 3341, 3341125 (codified at
As is apparent from the listed activities, the Committee assists

the NSC by reporting and recommending on, as well as
coordinating, the nation's intelligence gathering efforts as
required to address national security interests specified by
the President. Id. Insofar as the Committee is also charged
with establishing priorities (including funding priorities)
among intelligence programs, and policies relating to the
roles of various elements of the intelligence community and
the targets of intelligence activities, see id., such provisions
might suggest independent authority if read in isolation. But
statutory text is not properly construed in isolation; it must be
read in context. See Utility Air Regulatory Grp. v. EPA, 134
S.Ct. at 2441. The context in which the Committee on Foreign
Intelligence takes any of the actions listed in 3021(h)(3)
is established by its singular statutory function: to assist
the Council-an entity whose sole statutory function, as we
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have already concluded, is to advise and assist the President.
Where Congress thus grants only advisory and assistance
functions to entities within a hierarchical system headed
by the President, we identify no legislative intent to confer
authority independent of the President on that system. Rather,
we conclude that the Committee on Foreign Intelligence,
like the Council, provides a forum for specified persons to
identify national security needs, priorities, and policies in
order to transmit their recommendations upward for further
action, and to provide guidance downward so that diverse
departmentseach acting pursuant to the authority of its
own headcan effectively coordinate implementation of the
President's policies.
*10 Our reading of the text not to confer independent
authority on the Committee is further supported by legislative
history. SeeH.R.Rep. No. 104832, at 38 (1996) (Conf.Rep.)
(stating intent for Committee on Foreign Intelligence to
provide better guidance to the intelligence community);
S.Rep. No. 104258, at 26 (1996) (stating intent to provide
policy-level guidance for the conduct of U.S. intelligence
activities).
In sum, because the sole function of the Committee on
Foreign Intelligence is to assist the Council, and thereby,
the President, and because it provides only guidance, not
directives, to other parts of government, we conclude that it
exercises no independent authority and, therefore, is not an
agency subject to the FOIA.
d. The Committee on Transnational Threats

At the same time that Congress added the Committee on
Foreign Intelligence to the NSC System, it also added
the Committee on Transnational Threats. See Intelligence
Renewal and Reform Act of 1996 804, 110 Stat. at
347677 (codified as amended at 50 U.S.C. 3021(i)).
That Committee consists of the President's National Security
Advisor, who serves as chair, as well as the Director of
National Intelligence, the Secretaries of State and Defense,
the Attorney General, and such other members as the
President may designate. See50 U.S.C. 3021(i)(2). Its single
statutory function is to coordinate and direct the activities
of the United States Government relating to combatting
transnational threats. Id. 3021(i)(3).
We have already explained why coordination within the
NSC System does not contemplate the exercise of any
authority independent of the President. See supra at [20
21]. As for the word direct, while it can imply an exercise
of authority, it does not always. Direct can mean to

manage or guide by advice, helpful information, instruction,
etc. Random House Webster's Unabridged Dictionary 558
(2d ed.2001); see also Webster's Third New International
Dictionary 640 (1993) (defining direct to mean, inter alia,
to assist by giving advice, instruction, and supervision); 4
The Oxford English Dictionary 701 (2d ed.1989) (defining
direct to mean, inter alia, [t]o regulate the course of; to
guide, conduct, lead; to guide with advice, to advise). Here,
the statutory text, context, and legislative history support
construing the word to have such an advisory meaning . 19
Section 3021(i)(4) lists actions that the Committee on
Transnational Threats shall undertake in carrying out its
function . These include identifying transnational threats,
developing strategies to combat those threats, monitoring the
implementation of those strategies, assisting in the resolution
of policy differences among agencies, developing policies to
improve data sharing, and developing guidelines to improve
coordination. See id. Such activitiesidentifying problems,
developing best practices, monitoring implementationare
precisely those expected of an advisory body. Nowhere does
the statute confer on the Committee any authority itself to act
on identified problems, to enforce policies or guidelines, or
otherwise to dictate action to any persons or entities. To the
contrary, by placing this Committee within a system of fora,
atop which sits a Council whose sole function is to advise
and assist the President, Congress signaled its intent that the
Committee on Transnational Threats also function advisorily
rather than exercise independent authority.
*11 The relevant conference report supports this conclusion,
stating that the Committee on Transnational Threats was
created to provide senior-level guidance on issues raised
by the intersection of law enforcement and intelligence.
H.R.Rep. No. 104832, at 38 (Conf.Rep.). That view
was echoed by Senator Arlen Specter (RPa.), the Senate
majority's floor manager for the legislation, who stated
that the Committee's purpose was to provide better policy
guidance ... for departments and agencies involv[ed] in
fighting international terrorism and crime. 142 Cong. Rec.
23,322 (1996).
No different conclusion is warranted because the President
and the Department of Justice objected to the creation of
the Committee on Transnational Threats. Their concern
was separation of powers, i.e., Congress's intrusion on the
President's prerogative to decide which officials within the
executive branch would advise on his policies relating to
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transnational issues. Nothing in their objections suggests
that the Committee was being granted authority independent
of the President. See Statement on Signing the Intelligence
Authorization Act for Fiscal Year 1997, 2 Pub. Papers 1813,
1813 (Oct. 11, 1996) (stating with respect to creation of
Committee on Transnational Threats that Congress's efforts
to dictate the President's policy process unduly intrude upon
Executive prerogatives and responsibilities); see alsoS.Rep.
No. 104258, at 2829 (noting Justice Department's view
that law enforcement activities should not be directed on the
basis of considerations unrelated to the enforcement of law).
In sum, relevant statutory provisions provide for the various
parts of the NSC System to perform functions that advise and
assist the Council and the President. They confer no authority
independent of the President so as to make the NSC System
an agency subject to the FOIA.
2. The President Has Not Granted the NSC System Any

Independent Authority
a. Presidential Delegations of Authority
Each President organizes the NSC System as he thinks
will best assist him in carrying out his national security
responsibilities. See, e.g., PPD-1, at 1 (To assist me in
carrying out my responsibilities in the area of national
security, I hereby direct that the National Security Council
system be organized as follows.). Main Street maintains that
the President has done so in a way that allows the NSC System
to exercise national security authority independent of him,
thereby making it an agency subject to the FOIA. We are not
persuaded.
At the outset, we observe that a due regard for separation
of powers signals judicial caution in assessing a claim that
the nation's Chief Executive has so conveyed his authority
to another person or entity that it can now be exercised
independent of him. This is not to suggest that the President
can never delegate executive authority. But the President
alone decides the extent and conditions of any delegation.
Moreover, he can revoke a delegation whenever he changes
his mind or overrule any exercise with which he disagrees.
For these reasons, we are skeptical as to whether a President
can ever be said to have delegated his own authority in a
way that renders it truly independent of him. See Meyer v.
Bush, 981 F.2d at 1297 (noting even dissent's doubt that
President would ever delegate true independent authority to
his cabinet, and reaching same conclusion with respect to

task force composed in part of certain cabinet officials).
*12 [4] This contrasts with statutory grants of authority to
executive departments or agencies, which flow from a source
independent from the President. Thus, Congress can confer
authority beyond the President's own. In such circumstances,
the President may still give directions to executive agencies,
and he can usually fire a recalcitrant agency head. But he
cannot take away the agency's statutory authority or exercise
it himself. See Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 493, 130 S.Ct. 3138, 177
L.Ed.2d 706 (2010) (recognizing that Congress may vest
appointment power in agencies rather than President); Myers
v. United States, 272 U.S. 52, 135, 47 S.Ct. 21, 71 L.Ed.
160 (1926) (acknowledging that President may not always
overrule or revise subordinate's action). Statutory grants
therefore easily allow an entity within the executive branch
to be deemed an authority of the Government of the United
States' that exercises power independent of the President.
Soucie v. David, 448 F.2d at 1073 (quoting 5 U.S.C. 551(1)).
But presidential delegations of authority may not warrant that
conclusion. They may simply make the entity an extension
of the President, a vehicle for assisting him in exercising his
authority when he cannot do so in person. See id. at 1075
(stating that entity that is part of the President's staff could
not be separate agency).
We need not here decide when, if ever, a presidentialrather
than statutorygrant of authority might allow an executive
entity to exercise power independent of the President so as to
render it an agency subject to the FOIA. We decide only that
no such agency conclusion is warranted here with respect to
the NSC System.
b. PPD1 Clearly Expresses the President's Intent To

Organize the NSC System To Assist Him in Exercising His
Authority
In assessing a claim that the President has so conveyed his
authority as to allow it to be exercised independent of him,
separation of powers further counsels a respectful measure
of deference to the President's own statements of intent in
taking the action at issue. The first words of the President's
Policy Directive organizing the NSC System clearly express
his intent: To assist me in carrying out my responsibilities in
the area of national security, I hereby direct that the National
Security Council system be organized as follows. PPD-1, at
1 (emphasis added). The highlighted language makes plain
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that the President organized the NSC System only to secure
assistance for himself in carrying out his responsibilities.
Nothing in the directive indicates any intent to transfer
presidential authority so that it can be exercised independent
of the President. In this regard, we reiterate a point made
earlier: the relevant Soucie inquiry is not whether a unit
within the Executive Office of the President can exercise
some discretion in providing the President with advice and
assistance. It is whether advice and assistance to the President
is the unit's sole function, or whether it is empowered to
exercise authority independent of the President. When we
apply Soucie analysis to PPD-1, we easily conclude from its
plain language that it establishes assistance to the President as
the sole function of the NSC System and conveys no authority
to act independent of the President either with respect to
private persons or other government entities.
be formulated or clarified and a decision to refer it

to the Council and, thereby, to the President himself.
That circumstance manifests advice and assistance to the
President, not the exercise of authority independent of
him. 21 Or there may be a conclusion to coordinate
agencies' implementation of a particular presidential policy
and a decision about how to achieve that. In that
circumstance, however, the Principals Committee does not
itself exercise independent authority. Rather, it serves as a
forum for members to coordinate the action authority of their
individual agencies in furthering presidential policies. Such
a coordinating forum assists the President but exercises no
authority independent of either him or the forum's members.
(2) The Deputies Committee

c. PPD1 Grants NonStatutory Committees No Authority
Independent of the President
*13 Despite PPD-1's plain statement of presidential intent
only to secure assistance from the NSC System, Main
Street argues that the President has therein organized nonstatutory NSC committees so that they do exercise authority
independent of him. For the reasons that follow, PPD-1 does
not support that conclusion.
(1) The Principals Committee

The Principals Committee referenced in PPD-1 has operated
since 1989 as the senior interagency forum for consideration
of policy issues affecting national security. PPD-1, at 2
3 (emphasis added). 20 Obviously, it assists the President
in carrying out his national security responsibilities to
have heads of various executive departments meet together
and jointly consider issues affecting national security. The
coordination objective at the core of the NSC's authorizing
legislation contemplates both channeling jointly considered
policy recommendations up to the Council, and thereby to
the President, and channeling the President's policy decisions
down for consistent implementation across departments. See
supra at [2021].
The fact that the Principals Committee may reach
conclusions and decisions' does not manifest an
exercise of independent authority by the committee. See
Appellant's Br. 24 (quoting PPD-1, at 3). There may be
a conclusion that a national security policy needs to
The Deputies Committee, as its name suggests, consists of

persons serving as deputies to the ranking officials serving
on the Principals Committee. See PPD-1, at 4. It thus
occupies the rung below the Principals Committee in the
NSC hierarchy. The Deputies Committee help[s] ensure that
issues being brought before the [Principals Committee] or the
NSC have been properly analyzed and prepared for decision.
Id. at 3. This is plainly a function intended to assist the
Principals Committee and the Council, which in turn advises
and assists the President. See generally Cutler, supra note
10, at 170 (discussing importance of having items presented
for Council deliberation on basis of carefully staffed and
carefully written documents). It bespeaks no exercise of
authority independent of the President.
*14 The Deputies Committee also schedules [p]eriodic
reviews of the Administration's major foreign policy
initiatives ... to ensure that they are being implemented in
a timely and effective manner, and to consider whether
existing policy directives should be revamped or rescinded.
PPD-1, at 34. Such a review-and-recommendation process
also serves only to assist the President in implementing his
policies; it does not constitute authority independent of the
President.
The Deputies Committee is responsible for day-to-day crisis
management, reporting to the National Security Council. Id.
at 4. The qualifying obligation to report to the Council, over
which the President himself presides, makes plain that the
Committee's management responsibility involves no exercise
of authority independent of the President, but only the handson assistance needed for the President to respond to crises.
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Finally, the Deputies Committee review[s] and monitor[s]

the work of the NSC interagency process, a task that includes
setting up Interagency Policy Committees to review policies
and develop options in respective areas. Id. at 3, 5. That
this task only assists the President and exercises no authority
independent of him is evident from the responsibilities of the
Interagency Policy Committees.
(3) The Interagency Policy Committees

The Interagency Policy Committees are the main day-today fora for interagency coordination of national security
policy. Id. at 5. As such, they provide policy analysis
for consideration by the more senior committees of the
NSC system and ensure timely responses to decisions made
by the President. Id. They also review and coordinate
the implementation of Presidential decisions in their policy
areas. Id. In short, the Interagency Policy Committees'
only task is to provide assistance within an NSC System
that functions solely to advise and assist the President;
the Committees exercise no authority independent of the
President.
In urging otherwise, Main Street contends that a Justice
Department investigation shows that, with respect to policy
decision-making for detention issues, authority independent
of the President was exercised successively at each of three
NSC committee levels: the Interagency Policy Committee,
the Deputies Committee, and the Principals Committee.
Appellant's Br. 26. In fact, the report cited for this assertion
does not support it. See U.S. Dep't of Justice, Office of Insp.
Gen., A Review of the FBI's Involvement in and Observations
of Detainee Interrogations in Guantanamo Bay, Afghanistan,
and Iraq (2009), available at http://1.usa.gov/1MqabYs.
The report states that discussions on various detention
matters, including processes for sorting detainees and later
for the repatriation or release of detainees, took place in
a Policy Coordinating Committee. Id. at 1617. Such
discussions are necessary to the coordination task assigned
Interagency Policy Committees by the President. They are
not an exercise of authority independent of the President.
The cited report further states that detainee issues not
resolved by an Interagency Policy Committee were raised
to the Deputies Committee and, if not resolved there, to the
Principals Committee. Id. at 17. This does not demonstrate
each committee's exercise of authority independent of the
President. Rather, it shows that where agency representatives

in each committee could agree on how to coordinate detainee
issues consistent with the President's policy, they did so,
but where they encountered disagreements that they could
not reconcile, they raised the issue to the next higher
committee level. It is hardly surprising that department heads
serving on the Principals Committee, many of whom also
served on the National Security Council, were better able
than their subordinates to reconcile certain disagreements to
ensure their departments' coordinated compliance with the
President's policies. Nor is there any reason to think that if
the Principals Committee could not do so, it would not have
raised the matter to the Council for presidential decision.
*15 In sum, we identify nothing in the President's
organization of the NSC System that allows any part
thereof to exercise authority independent of the President.
Rather, PPD-1 organizes the NSC System to establish a
hierarchy of interagency fora for providing the President with
information and recommendations on national security issues
from across the executive branch, as well as for coordinating
implementation of the President's policies across government
departments. Thus, we conclude that the NSC System, like
the Council, has a single function: to advise and assist the
President. Because it exercises no independent authority, it is
not an agency subject to the FOIA.
d. Executive Orders Grant the NSC System No Authority

Independent of the President
The various executive orders cited by Main Street also fail to
support its argument that the NSC System exercises authority
independent of the President.
One cited order provides for coordination, guidance, and
dispute resolution in the area of emergency communications
policy through the interagency process provided in PPD-1.
SeeExec. Order No. 13,618 2.1, 3 C.F.R. 273, 27374
(2013). We have already concluded that coordination and
guidance within the NSC System assist the President in
implementing his policies; they do not constitute an exercise
of independent authority. The same conclusion obtains with
respect to dispute resolution through the PPD1 interagency
process. As we have explained, that process establishes
a hierarchy of interagency fora for full discussion across
government departments of national security issues and
coordinated implementation by departments of the President's
policies. But the resolution of disputes in this process appears
to be consensual, thus narrowing the matters requiring
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Council and, ultimately, presidential attention. Nowhere does
the order authorize any part of the NSC System on its own to
dictate a resolution to any objecting government department.
Another cited order provides for NSC review of both
past covert operations and new proposed operations for
the purpose of providing support to the President and
submitting to the President a policy recommendation. Exec.
Order No. 13,470 sec. 2, 1.2, 3 C.F.R. 218, 21920 (2009).
This is entirely consistent with the NSC's statutory advisory
function, and indicates no exercise of authority independent
of the President.
Similarly, executive orders providing for the NSC to
formulate or give policy direction for security programs
affecting multiple agencies, or to approve or review such
programs' directives or actions, do not reach beyond the
NSC's advisory coordinating function. SeeExec. Order No.
13,603 104(a), 3 C.F.R. 225, 226 (2013) (providing for
NSC, along with other bodies, to serve as the integrated
policymaking forum for consideration and formulation of
national defense resource preparedness policy and to
make recommendations to President on use of statutory
authority); Exec. Order No. 12,829 102(a)-(b), 3 C.F.R.
570, 57071 (1994) (providing for NSC to give overall
policy direction on National Industrial Security Program, to
approve directives of that program, and to resolve interagency
disputes). Because the NSC is statutorily charged with
advising the President as to the integration of policies
requiring cooperation among diverse agencies, see50 U.S.C.
3021(a)-(b), we will not assume that executive orders
providing for NSC involvement in programs requiring such
coordinated policies grant the NSC authority independent of
the President who presides over it.
*16 Finally, we identify no grant of independent authority
in the executive order creating a Steering Committee,
chaired by senior representatives of the NSC Staff and
the Office of Management and Budget, to establish and
review goals for interagency sharing and safeguarding
of classified information. Exec. Order No. 13,587 3, 3
C.F.R. 276, 277 (2012). The order does not contemplate
that the Steering Committee will pronounce policies, or even
set priorities or standards. Rather, it directs the Steering
Committee to coordinat[e] interagency development and
implementation of such matters. Id. 3.1 (emphasis added).
Such coordination is at the core of the assistance provided
to the President by the NSC. It involves no exercise of
authority independent of the President or even independent
of the agencies endeavoring to coordinate their own efforts.

See supra at [2021]. This is evident from the fact that, when
coordination cannot be achieved in the Steering Committee,
the executive order provides for referral to the NSC Deputies
Committee in accordance with PPD-1. SeeExec. Order No.
13,587 3.3(h), 3 C.F.R. at 277. The Deputies Committee
exercises no independent authority, see supra at [4345];
rather, it provides yet another forum for still higher ranking
officials to resolve coordination challenges. Moreover, when
the Steering Committee identifies a need for an overarching
policy beyond interagency coordination, the executive order
does not authorize the Committee to promulgate that policy
itself. Rather, it directs the Steering Committee to recommend
promulgation to agencies outside the NSC System authorized
to do so, specifically, the Office of Management and Budget
or the Information Security Oversight Office of the National
Archives and Records Administration. SeeExec. Order No.
13,587 3.3(e), 3 C.F.R. at 277.
Accordingly, we reject Main Street's argument that the cited
executive orders confer on the Council or NSC System any
authority that can be exercised independent of the President.
e. NSC Regulations Do Not Demonstrate Its Current

Exercise of Authority Independent of the President
Main Street further argues that the NSC's agency status can
be inferred from its promulgation of regulations. See Pacific
Legal Found. v. Council on Envtl. Quality, 636 F.2d at 1263
(citing Council on Environmental Quality's promulgation of
regulations in holding it agency subject to FOIA). The cited
regulations, however, were all promulgated more than two
decades ago and under circumstances that will not admit
an inference that the NSC presently exercises any authority
The cited telecommunications regulations, 47 C.F.R.
211.6(c), (g), 213.7(f), (g), were promulgated pursuant
to Executive Order No. 12,046 4, 3 C.F.R. 158, 163
(1979) (giving NSC responsibility over development of
telecommunications policy for emergency situations). In
1984, however, those sections of Executive Order No.
12,046 relating to the NSC were revoked and superseded by
Executive Order No. 12,472 4(b)(1), 3 C.F.R. 193, 201
(1985), which left the NSC with a largely advisory role in
the telecommunications system, see id. 2, 3 C.F.R. at 196
98. Even that was withdrawn when Executive Order No.
12,472 was revoked by Executive Order No. 13,618 7(b), 3
C.F.R. 273, 278 (2013). In sum, at present, the NSC plays no
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role in the telecommunications system other than to provide
a process for interagency coordination consistent with its
overall, and sole, advisory function. See id. 2.1, 3 C.F.R. at
27374.
*17 As for regulations promulgated to comply with the

Privacy Act, 32 C.F.R. pt. 2102, and an executive order
mandating declassification review, 32 C.F.R. pt. 2103; see
also5 U.S.C. 552a (Privacy Act); Exec. Order. No. 12,065, 3
C.F.R. 190 (1979) (declassification order), these were issued
at times when OLC deemed the NSC an agency. Since OLC's
1993 withdrawal of that opinion, see supra at [2526], the
replied that [t]he process of deciding to take such an

extraordinary action would involve legal review by the
Department of Justice, as well as a discussion among
the departments and agencies across our national security
team, including the relevant National Security Council
Principals and the President. John Brennan, Responses to
Posthearing Questions 5 (2013) (emphasis added), available
at http://1.usa.gov/1fp6lki. Far from demonstrating authority
exercised independent of the President, the described process
manifests the very function of advising the President in
connection with the exercise of his authority, as envisioned
by Congress in establishing the NSC and by the President in
NSC has issued no further regulations. 22
organizing the NSC System. 25
Main Street nevertheless submits that because certain of

these Privacy Act and declassification regulations remain in
effect, the NSC continues to exercise independent authority
and, therefore, is an agency. We are not persuaded. The
extant regulations only outline procedures the NSC will
employ in responding to record requests or in classifying
In a letter submitted before oral argument, seeFed. R.App. P.

28(j), Main Street also cites the partially declassified 500
page summary to a classified 7,000page Senate Intelligence
Committee Report on the use of enhanced interrogation
techniques under the administration of President George W.
Bush. From this mass of material, Main Street highlights a
single statement, attributed to CIA records, that in July 2004,
the NSC Principals Committee agreed that the CIA was
authorized and directed to utilize enhanced interrogation
techniques on detainee Janat Gul. Appellant's Fed. R.App. P.
28(j) Letter, Feb. 23, 2015, at 1 (emphasis omitted) (quoting
Sen. Select Comm. on Intelligence, Committee Study of the
Central Intelligence Agency's Detention and Interrogation
ProgramExecutive Summary (Executive Summary) 344
45 (2014), available at http://1.usa.gov/1RUx1uY). Main
Street submits that this was a formal authorization that the
Principals Committee granted independently of the President
because the President does not sit on that Committee, and
because the President was not even briefed on enhanced
interrogation techniques' until April 2006 . Id. The quoted
statement from the CIA report is too slender a reed to support
Main Street's contention.
or declassifying documents processed by its staff. 23 They

impose no duties or restrictions on private persons or
government entities, as is usually the case with an exercise of
government authority.
Accordingly, we conclude that the NSC's past promulgation
of regulations cannot support a conclusion that it currently
exercises any authority independent of the President or
performs any function but to advise and assist the President.
f. Reported NSC System Actions

Main Street submits that third-party reports of NSC System
actions demonstrate that it does not function only to advise
and assist the President but, rather, exercises authority
independent of him. We are reluctant to locate the authority
indicative of agency status in action unsupported by an
identified legal grant from Congress or the President. We do
not pursue that point, however, because the actions cited by
Main Street are insufficient to demonstrate agency status in
any event. 24
Main Street submits that then-Homeland Security Advisor
John Brennan's responses to Senate questions about the
selection of drone targets demonstrate that the NSC System
exercises authority independent of the President. In fact,
the record is to the contrary. Asked who within the
Administration makes the final determination to launch a
drone strike against an American citizen target, Brennan
*18 First, insofar as Main Street's argument depends

on presidential ignorance, the only cited support for this
premise is the Summary's observation that CIA records
indicate that the first CIA briefing for the President on
the CIA's enhanced interrogation techniques occurred on
April 8, 2006. Executive Summary 40. But as the Summary
elsewhere states, the CIA had earlierand repeatedly
briefed a host of presidential advisors on the matter,
including the Vice President, several cabinet members, the
President's National Security Advisor, White House Counsel,
and various White House staffers. See id. at 38, 115
16, 119. Precedent does not permit an assumption that all
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these officials kept the President in the dark about CIA
interrogation, much less that they did so for four years while
the Principals Committee exercised independent authority in
this area. See United States v. Armstrong, 517 U.S. 456, 464,
116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (holding that in the
absence of clear evidence to the contrary, courts presume that
[government officials] have properly discharged their official
duties) 26 ; see generally Ashcroft v. Iqbal, 556 U.S. 662,
68182, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (holding
that inference of proscribed intent not plausible where there
is more likely explanation for challenged conduct).
Further, and more important, the quoted CIA report is
insufficient plausibly to allege the NSC's exercise of
authority independent of the President. The report asserts
that the Principals Committee agreed that the CIA was
authorized and directed to utilize enhanced interrogation.
But authorized and directed by whom? We have
already explained how presidents have organized the NSC
System, including the Principals Committee, not to exercise
independent authority, but to advise them in providing
for national security and to assist in ensuring coordinated
implementation of presidential policies across government
departments. Thus, we will not readily assume that any part
of the NSC System has overreached its function. See United
States v. Armstrong, 517 U.S. at 464. Specifically, we will not
assume that when any part of the NSC System concludes that
a department is authorized and directed to take action that it
is the NSC itself that is authorizing and directing the action
rather than simply communicating that the proposed action is
authorized and directed by presidential policies.
That caution is reinforced here by the Executive Summary's
report that it was the President's National Security Advisor
who initially approved the 2004 interrogation at issue,
before proposing that the CIA present the matter to the
Principals Committee for additional guidance. Executive
Summary 13536. The Committee, in turn, directed the
Justice Department to provide the CIA with a legal
opinion, which the Attorney General did, acting on his
own authority as the nation's chief law enforcement officer.
See id. at 136 (reporting Attorney General's opinion that
nine of proposed interrogation techniques comported with
Constitution and treaty obligations). These circumstances,
where initial approval is conveyed by a presidential advisor
not held to exercise authority independent of the Chief
Executive, see Kissinger v. Reporters Comm. for Freedom
of the Press, 445 U.S. at 156, and where the NSC, through
its Principals Committee, then coordinates among various
departments, do not manifest the Committee's exercise of any

*19 Accordingly, the actions Main Street attributes to the
NSC System do not raise a plausible inference of independent
authority so as to make the NSC an agency subject to the
FOIA.
In sum, because the Council and the NSC System function
solely to advise and assist the President and exercise no
authority independent of the President, the NSC does not
constitute an agency subject to the FOIA. We, therefore,
conclude that, insofar as Main Street sues under the FOIA
to compel the disclosure of agency documents, its complaint
against the NSC was properly dismissed.
F. Because the FOIA Agency Requirement Does Not

Implicate SubjectMatter Jurisdiction, the Complaint Was
Correctly Dismissed on the Merits
[5] [6] To dismiss a claim on the merits, or to affirm such
dismissal, a court must have jurisdiction. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 9495, 118 S.Ct.
1003, 140 L.Ed.2d 210 (1998). The NSC argued before the
district court that a court has subject-matter jurisdiction to
hear and decide FOIA claims only if the party from whom
disclosure is sought is, indeed, an agency. We disagree.
Absent agency, a court properly dismisses a FOIA claim on
the merits, not for lack of subject-matter jurisdiction.
The FOIA states, in relevant part, as follows:
On complaint, the district court of the United States
in the district in which the complainant resides, or has
his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has
jurisdiction to enjoin the agency from withholding
agency records and to order the production of
any agency records improperly withheld from the
complainant.
5 U.S.C. 552(a)(4)(B) (emphasis added).
Although the statute uses the term jurisdiction, the Supreme
Court has cautioned that [j]urisdiction ... is a word of many,
too many, meanings. Steel Co. v. Citizens for a Better
Env't, 523 U.S. at 90 (internal quotation marks omitted).
Some statutes use jurisdiction to reference subject-matter
jurisdiction, that is, a court's statutory or constitutional
power to adjudicate the case . Id. at 89. Other statutes,
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however, use jurisdiction to specify[ ] the remedial powers
of the court. Id. at 90 (emphasis omitted). The latter use does
not implicate subject-matter jurisdiction. See id.
Based on its text, we construe 552(a)(4)(B) to
reference remedial power, not subject-matter jurisdiction.
The highlighted language does not speak to the court's ability
to adjudicate a claim, but only to the remedies that the court
may award. See id. at 9192 (rejecting principle that a statute
saying the district court shall have jurisdiction to remedy
violations [in specified ways] renders the existence of a
violation necessary for subject-matter jurisdiction (brackets
in original)).
Admittedly, the Supreme Court has previously referred to
552(a)(4)(B) as jurisdictional. See United States Dep't of
Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841,
106 L.Ed.2d 112 (1989); Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. at 150. In those cases,
however, the Court appears to have used the term in the sense
of remedial power rather than subject-matter jurisdiction. See
United States Dep't of Justice v. Tax Analysts, 492 U.S. at
142 (discussing jurisdiction to devise remedies to force an
agency to comply with the FOIA's disclosure requirements);
Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. at 150 (discussing [j]udicial authority to devise
remedies and enjoin agencies). Moreover, in Steel Co., the
Supreme Court held that prior opinions referring to statutes
as jurisdictional without indicating that they meant subjectmatter jurisdiction, or whether the jurisdictional treatment
made a substantive or procedural difference, have no
precedential effect. Steel Co. v. Citizens for a Better Env't,
523 U.S. at 91. Accordingly, the Court's earlier descriptions
of 552(a)(4)(B) as jurisdictional are not controlling here.
*20 Because 552(a)(4)(B) does not implicate subjectmatter jurisdiction, we conclude that the district court
properly dismissed the complaint on the merits pursuant to
Fed.R.Civ.P. 12(b)(6), and we affirm that judgment.
G. The District Court Did Not Abuse Its Discretion in

Denying Discovery
[7] In opposing dismissal, Main Street argued that the
district court could easily conclude from publicly available
materials that the NSC was an agency subject to the FOIA.
If the district court was inclined otherwise, however, Main
Street sought sweeping discovery into the complete scope
of the NSC's current powers and responsibilities. Pl.'s
Opp'n to Mot. to Dismiss 19. The district court agreed with

Main Street that publicly available materials were wholly
sufficient for a proper adjudication of the agency question,
but not with the conclusion Main Street urged therefrom.
Main St. Legal Servs. v. Nat'l Sec. Council, 962 F.Supp.2d
at 478 n. 4. Accordingly, it granted the NSC's motion for
dismissal, but denied Main Street further discovery. We
review a denial of discovery only for abuse of discretion,
see Allied Mar., Inc. v. Descatrade SA, 620 F.3d 70, 76 (2d
Cir.2010), and we identify no such abuse here.
[8] A plaintiff who has failed adequately to state a claim
is not entitled to discovery. See Ashcroft v. Iqbal, 556
U.S. at 686 (holding that where complaint fails pleading
requirements, plaintiff is not entitled to discovery, cabined
or otherwise); see also Neitzke v. Williams, 490 U.S. 319,
32627, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (stating that
Fed.R.Civ.P. 12(b)(6) streamlines litigation by dispensing
with needless discovery and factfinding).
To state a claim for relief under 5 U.S.C. 552(a)(4)(B), a
plaintiff must plausibly allege, among other things, that the
defendant is an agency subject to the FOIA. Where, as here,
the defendant is a unit within the Executive Office of the
President, Main Street's conclusory pleading of agency status
was insufficient. See Ashcroft v. Iqbal, 556 U.S. at 678; see
also Compl. 5 (Defendant National Security Council ... is
an agency within the meaning of 5 U.S.C. 552(f)(1).). To
the extent Main Street pointed to publicly available materials
to support its agency allegations, we have just explained
why those materials do not admit a plausible claim. In the
absence of a plausible claim of agency, the district court acted
within its discretion in granting dismissal without affording
Main Street discovery. See Ashcroft v. Iqbal, 556 U.S. at
686; Podany v. Robertson Stephens, Inc., 350 F.Supp.2d 375,
378 (S.D.N.Y.2004) (Lynch, J.) ([D]iscovery is authorized
solely for parties to develop the facts in a lawsuit in which a
plaintiff has stated a legally cognizable claim, not in order to
permit a plaintiff to find out whether he has such a claim, and
still less to salvage a lawsuit that has already been dismissed
for failure to state a claim.).
The cases Main Street cites that have allowed discovery
on a defendant's agency status are inapposite. Citizens
for Responsibility & Ethics in Washington v. Office
of Administration, No. CIV.A.07964 (CKK), 2008 WL
7077787 (D.D.C. Feb.11, 2008), allowed discovery on the
theory that agency status was arguably jurisdictional, see
id. at *2 (noting liberal standard for allowing jurisdictional
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discovery). We have here rejected that view of the FOIA's
agency requirement. As for Armstrong v. Executive Office of
the President, 877 F.Supp. 690 (D.D.C.1995), rev'd,90 F.3d
553 (D.C.Cir.1996), the motion to dismiss on the basis that the
NSC was not an agency, which the court treated as a motion
for summary judgment, was not filed until after discovery had
occurred, see id. at 697 & nn. 78.
*21 Accordingly, we identify no abuse of discretion by the
district court.
III. Conclusion
To summarize, we conclude as follows:
1. The NSC is not an agency subject to the FOIA because
both the Council itself and the NSC System (a) function
only to advise and assist the President in performing his
national security responsibilities and (b) exercise no authority
2. The absence of an agency defendant supported the
district court's dismissal of this FOIA action on the
merits, seeFed.R.Civ.P. 12(b)(6), rather than for lack of
jurisdiction, seeFed.R.Civ.P. 12(b)(1), because the reference
to jurisdiction in 5 U.S.C. 552(a)(4)(B) implicates a
court's remedial powers, not its subject-matter jurisdiction.
3. Because plaintiff's complaint failed to state a claim, the
district court acted within its discretion in granting dismissal
without affording discovery.
The judgment of the district court is, therefore, AFFIRMED.
WESLEY, Circuit Judge, concurring:

I concur in Judge Raggi's opinion because I am reluctant
to deviate from the conclusions reached by the Office of
Legal Counsel and the D.C. Circuit concerning the question
before us, which have been in effect for over twenty years,
and which Congress has declined to overturn in all that
time. See Freedom of Information Act (5 U.S.C. 552)-Nat'l
Sec. CouncilAgency Status Under FOIA, 2 Op. O.L.C. 197
(1978), withdrawn by Memorandum from Walter Dellinger,
Acting Ass't Att'y Gen., Office of Legal Counsel, to Alan J.
Kreczko, Spec. Ass't to the President and Legal Adviser, Nat'l
Sec. Council (Sept. 20, 1993); see also Armstrong v. Exec.
Office of the President, 90 F.3d 553 (D.C.Cir.1996).
I completely agree with my colleagues that there is no doubt

that the core function of the National Security Council proper
is a purely advisory one. The Council meets to give advice
to the President, who chairs its meetings, and who is the
sole decider on the questions that come before the Council.
The question becomes more complicated, however, when one
looks not just at the Council but at the entire NSC System
as we all agree we must do in this case. Subsections
of the National Security Act establish Committees that do
not include the President but are nonetheless authorized to,
among other things, establish[ ] priorities, establish[ ]
policies, coordinate policies of the United States, and
direct activities of the United States Government. 50
U.S.C. 3021(g)-(i). These functions sound like those of a
government agency that has authority to act on important
matters. Moreover, Congress created and empowered these
NSC Committees over the express objection of the President.
See Presidential Statement on Signing the Intelligence
Authorization Act for Fiscal Year 1997, 2 Pub. Papers 1813
(Oct. 11, 1996).
The majority opinion carefully reviews the statutory language
in question and concludes those sections can be understood
only in the context of the core function of the Council
to which the Committees and their staffs reportto act as
an advisor to the President on national security matters.
There is considerable force to that analysis. Furthermore,
the notion that the purely advisory Council might somehow
morph into an agency by reason of authorizing statutes for
its subunits seems, frankly, peculiar, particularly since it is
not clear whether these subunits are actually populated and
functioning. We are not in the habit of making law from
shadows.
*22 When Congress last spoke to this question, it seemed
poised to make FOIA applicable to all important units of
the Executive Office of the President. In an ambiguous
last-minute compromise, it drew back from that result,
indicating instead that some units were sufficiently advisory,
sufficiently close to the President, and sufficiently lacking in
independent authority that they should remain exempt from
FOIA. For over twenty years, the Executive Branch and the
Court of Appeals that most frequently interacts with FOIA
as applied to the chief offices of government have concluded
that the NSC is one of those exempt units, and as noted
above, that conclusion apparently has been accepted by the
Congress without much controversy. Whether that conclusion
is wise policy, or whether it accurately captures the intent
of the Congress in adopting the FOIA amendments, is best
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considered a political issue for Congress and the President,

not for this Court.
All Citations
--- F.3d ----, 2016 WL 305175
Judge WESLEY concurs in a separate opinion.
Footnotes
Plaintiff has acknowledged that many, if not all, of the records it demands from the NSC may be subject to a FOIA
disclosure exemption. Appellant's Br. 53; see, e.g.,5 U.S.C. 552(b)(1) (exemption for classified records); id. 552(b)(5)
(exemption for records of deliberative process); see also Douglas Cox & Ramzi Kassem, Off the Record: The National
Security Council, Drone Killings, and Historical Accountability, 31 Yale J. on Reg. 363, 391 (2014). The task of deciding
which documents are subject to exemption would arise, however, only if the NSC is an agency subject to the FOIA. That
issue is the sole focus of this appeal.
The National Security Act, together with its 1949 amendments, (1) created the Department of Defense and brought
together under it the Army, Navy, and Air Force; (2) created a Central Intelligence Agency for the collation and appraisal,
at one central point, of world intelligence relating to our national security; (3) created the National Security Resources
Board ... to advise the President concerning the coordination of military, industrial, and civilian mobilization; and (4)
established the National Security Council, all in order to facilitate integration of national security policy at the highest
level. Dillon Anderson [National Security Advisor to President Dwight D. Eisenhower], The President and National
Security, Atl. Monthly, Jan. 1956 (internal quotation marks omitted), reprinted in 2 Subcomm. on Nat'l Policy Mach. to
the S. Comm. on Gov't Operations, 87th Cong., Organizing for National Security (Organizing for Nat'l Sec.) 159, 161
(Comm. Print 1961).
Additional members of the Council designated by President Obama are the Secretaries of the Treasury and Homeland
Security, the Attorney General, the U.S. Representative to the United Nations, the President's Chief of Staff, and
the President's National Security Advisor. See PPD1, at 2. The President has directed that the following persons
attend some or all NSC meetings: the Director of National Intelligence, the Chairman of the Joint Chiefs of Staff, the
Counsel to the President, the President's Deputy National Security Advisor, the Secretary of Commerce, the U.S. Trade
Representative, the President's Assistant for Economic Policy, the Chair of the Council of Economic Advisers, the
President's Homeland Security Advisor, and the Director of the Office of Science and Technology Policy. See id.
The term National Security Council is used to describe both the statutorily created Council presided over by the
President and the NSC System, a hierarchy of interdependent committees and staff atop which the Council sits. See
Armstrong v. Exec. Office of the President, 90 F.3d at 560 (describing NSC as elaborate, self-contained structure and
bureaucracy organized into complex system of committees and working groups); David J. Rothkopf, Running the World:
The Inside Story of the National Security Council and the Architects of American Power, at XIV (2005) (describing common
confusion over meaning of term National Security Council). Thus, while Main Street's FOIA request to the NSC for
National Security Council meeting minutes, J.A. 25, might be understood to be directed only to the Council, its broader
request for [a]ll records related to drone strikes, including [p]rocedures, mechanisms, or processes, or [r]esults of
investigations, id., appears directed to the entire NSC System because, as this opinion explains, such materials are
exactly what the hierarchy of NSC committees and staff is expected to produce for the Council. Thus, because (1) NSC
is routinely used to reference the entire NSC System (in much the same way SEC is used to reference an entity larger
than its five-member Commission); (2) the FOIA requires only that a requestor reasonably describe the records sought,
5 U.S.C. 552(a)(3)(A); and (3) the government has never suggested that it understood Main Street's FOIA request
not to pertain to the NSC System, on this appeal, we construe Main Street's FOIA request and its agency argument to
pertain to the NSC as a whole, i.e., both to the Council and to the NSC System. We therefore refer in this opinion to the
Council as the statutorily created committee over which the President presides, the NSC System as the support staff
and subcommittees that operate beneath the Council, and the NSC as the entirety, encompassing both the Council
and the NSC System.
Although Main Street argues that Kissinger's reliance on legislative history has been called into question by subsequent
decisions relating to statutory construction, none of those decisions construes 552(f)(1). Accordingly, as to that statutory
text, we remain bound by Kissinger until that decision is overruled by the Supreme Court. See Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (If a precedent of this Court has
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6
7
10
11
12
direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.);
accord United States v. Gomez, 580 F.3d 94, 104 (2d Cir.2009).
In the almost twenty years since the D.C. Circuit held the NSC not to be an agency subject to the FOIA, Congress has
made no effort to reverse that decision.
Although the Executive Residence was not a part of the Executive Office of the President when Sweetland was decided,
the court treated it as if it were. See Sweetland v. Walters, 60 F.3d at 854. Since then, the Executive Residence has
been moved into the Executive Office of the President. See Whether the Office of Admin. Is an Agency for Purposes
of the Freedom of Information Act, 31 Op. O.L.C. 200, 205 n. 3 (2007) (citing Memorandum from Andrew H. Card, Jr.,
White House Chief of Staff, to Gary Walters, Chief Usher, Executive Residence (June 11,2002)); see also Executive
Office of the President, https://www.whitehouse.gov/administration/eop (last visited January 25, 2016) (listing Executive
Residence as part of Executive Office of President).
The dissent in Armstrong also criticized this approach, arguing that an entity within the Executive Office of the President
should be deemed an agency subject to the FOIA if it did anything apart from advising the President and assisting him
in what he does, and, specifically, if it exercis[ed] authority in a way that has concrete effects either on the interests
of private citizens or on other parts of the government. Armstrong v. Exec. Office of the President, 90 F.3d at 567, 570
(Tatel, J., dissenting).
As the D.C. Circuit has itself explained, the three factors were not intended to inject anything new into the Soucie inquiry,
but simply to capture the court's prior learning on the subject whether a unit within the Executive Office of the President is
an agency covered by the FOIA. Armstrong v. Exec. Office of the President, 90 F.3d at 558 (observing that each of three
identified factors warrants consideration insofar as it is illuminating in the particular case). The court has more recently
observed that common to every case in which it has held a unit within the Executive Office of the President to be an
agency is a finding that the entity in question wielded substantial authority independently of the President. Citizens for
Responsibility & Ethics in Washington v. Office of Admin., 566 F.3d at 222 (internal quotation marks omitted).
In explaining the work of the Council, former NSC Executive Secretary Sidney W. Souers and former National Security
Advisor Robert Cutler both cited 3021(a) in emphasizing the Council's singular advisory function:
It should, therefore, be clear that the Council itself does not determine policy. It prepares advice for the President as
his Cabinet-level committee on national security. With complete freedom to accept, reject, and amend the Council's
advice and to consult with other members of his official family, the President exercises his prerogative to determine
policy and to enforce it.
Sidney W. Souers, Policy Formulation for National Security, Am. Pol. Sci. Rev., June 1949, reprinted in Organizing
for Nat'l Sec. 146, 148.
The Council's role is advisory only. It recommends; it does not decide. Whatever security policy may be finally
approved by the President, after such modifications or rejections of the Council's views as he may determine, is the
policy, not of the Council, but of the Chief Executive.
Robert Cutler, The Development of the National Security Council, Foreign Affairs, Apr. 1958, reprinted in Organizing
for Nat'l Sec. 166, 167.
Section 3021(b) states as follows:
In addition to performing such other functions as the President may direct, for the purpose of more effectively
coordinating the policies and functions of the departments and agencies of the Government relating to the national
security, it shall, subject to the direction of the President, be the duty of the Council
(1) to assess and appraise the objectives, commitments, and risks of the United States in relation to our actual
and potential military power, in the interest of national security, for the purpose of making recommendations to the
President in connection therewith; and
(2) to consider policies in matters of common interest to the departments and agencies of the Government concerned
with the national security, and to make recommendations to the President in connection therewith.
50 U.S.C. 3021(b) (emphases added).
Former National Security Advisor Cutler has employed a policy hill metaphor to describe the coordination process.
Cutler, supra note 10, at 172. Upward coordination involves representatives of various entities sending policy
recommendations to the Council, where they are thrashed out and submitted to the President. Id. When the
President has approved a policy recommendation, downward coordination assists in its implementation across various
departments and agencies. Id. In short, the Council, as an entity, cannot itself dictate to either citizens or parts of
government. That authority is exercised by independent department heads at the direction of the President.
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14
15
16
17
18
19
20
The NSC's singular function is further evident in 50 U.S.C. 3021(d) (The Council shall, from time to time, make such
recommendations, and such other reports to the President as it deems appropriate or as the President may require.).
The House Report states that [t]he term establishment in the Executive Office of the President as used in this
amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and
Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar
establishments which have been or may in the future be created by Congress through statute or by Executive order. Id.
Insofar as Main Street argues that the President has himself empowered the Council, or the NSC of which it is a part,
to exercise authority independent of him and to perform functions that do more than advise and assist, we explain infra
at [3759] why those arguments fail.
It is not clear that the statutory board or committees presently exist. See PPD-1 (making no mention of Board for Low
Intensity Conflict, Committee on Foreign Intelligence, or Committee on Transnational Threats in directing organization
of NSC System); see also 142 Cong. Rec. 23,324 (1996) (statement of Sen. Bob Kerrey (D.Neb.), co-sponsor of bill
creating Committees on Foreign Intelligence and on Transnational Threats, acknowledging that these committees could
become moribund bodies as had Board for Low Intensity Conflict). Nevertheless, to the extent their statutory functions
may have been assigned by the President to other parts of the NSC System, see generally George W. Bush, National
Security Presidential Directive 1, at 6 (2001), available at https://www.hsdl.org/?view & did 462808 (assigning functions
of statutory committees to other, presidentially-created committees), we consider whether the NSC System thereby
exercises authority independent of the President.
Because we conclude that no part of the NSC System is authorizedby Congress or the Presidentto exercise authority
independent of the President or to do more than advise and assist the President, we need not here decide whether such
a grant of authority would transform the entire NSC System or only a part into an agency subject to the FOIA.
Title 50 U.S.C. 3021(h) states that
(3) The function of the Committee [on Foreign Intelligence] shall be to assist the Council in its activities by
(A) identifying the intelligence required to address the national security interests of the United States as specified
by the President;
(B) establishing priorities (including funding priorities) among the programs, projects, and activities that address such
interests and requirements; and
(C) establishing policies relating to the conduct of intelligence activities of the United States, including appropriate
roles and missions for the elements of the intelligence community and appropriate targets of intelligence collection
activities.
(4) In carrying out its function, the Committee shall
(A) conduct an annual review of the national security interests of the United States;
(B) identify on an annual basis, and at such other times as the Council may require, the intelligence required to meet
such interests and establish an order of priority for the collection and analysis of such intelligence; and
(C) conduct an annual review of the elements of the intelligence community in order to determine the success of
such elements in collecting, analyzing, and disseminating the intelligence identified under subparagraph (B).
(5) The Committee shall submit each year to the Council and to the Director of National Intelligence a comprehensive
report on its activities during the preceding year, including its activities under paragraphs (3) and (4).
In reaching this conclusion, we are mindful of the narrowness of the FOIA exception posited by the Conference Report,
and by the Soucie case to which it refers, both of which emphasize that in order to escape the definition of agency, a unit
of the Executive Office of the President must have the sole function of advising and assisting the President. See Soucie v.
David, 448 F.2d at 1075; H.R.Rep. No. 931380 (Conf.Rep.), reprinted in FOIA Source Book 232. Thus, a unit delegated
independent governmental authority over the public or other parts of government could not claim the exception simply
because it performed some advisory functions. At the same time, however, in considering whether statutory language
does, in fact, confer independent authority on part of a unit, we give due regard to the unit's predominant function. Where,
as here, Congress has created a hierarchical national security system to provide advice and assistance to the President
in defining and implementing his policies, we will not readily assume from a single word that Congress's intent was to
convey independent authority on a part inconsistent with the nature of the unit as a whole.
The National Security Advisor chairs the Principals Committee, on which serve the Secretaries of State, Treasury,
Defense, Energy and Homeland Security; the Attorney General; the Director of the Office of Management and Budget;
the U.S. Representative to the United Nations; the President's Chief of Staff; the Director of National Intelligence; and
the Chairman of the Joint Chiefs of Staff. Other designated persons can be invited to all or some meetings depending
on the agenda. See PPD-1, at 3.
20
Case
1:15-cv-02627-JG-RLM
Document
29 ---Filed
02/12/16
Main
Street
Sec. Council,
F.3d ---(2016)
21
22
23
24
25
26
See generally Anderson, supra note 2, at 16364 (describing value of having interdepartmental groups within NSC test
policy proposals before submission to Council: [M]any differences are reconciled in this process, much common ground
is found, and many disagreements prove after full discussion to be illusory and not basic differences after all. But if
an irreconcilable disagreement arises between the departments represented, the elements of the disagreement and
alternative policy courses can be clearly identified for full presentation to Council).
The OLC's now withdrawn opinion that the NSC was an agency also explains the NSC's compliance with FOIA until 1994.
See32 C.F.R. 2102.2(a) (The following regulations set forth procedures whereby individuals may seek and gain access
to records concerning themselves and will guide the NSC Staff response to requests under the Privacy Act. In addition,
they outline the requirements applicable to the personnel maintaining NSC systems of records.); id. 2103.2 (The
purpose of this regulation is to ensure ... that national security information processed by the National Security Council
Staff is protected from unauthorized disclosure, but only to the extent, and for such period, as is necessary to safeguard
the national security.).
To the extent Main Street argues that the cited actions raise an inference that classified executive orders exist granting
the NSC System independent authority, it effectively invites an inquiry into the discoverability of classified materials,
which is not appropriate where pleadings otherwise fail to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (holding that complaint must plead factual content that allows the court to
draw [a] reasonable inference supporting its claim, and plaintiff is not entitled to discovery to satisfy this requirement).
Main Street maintains that even if the President ultimately approves drone strike targets, the authority wielded by NSC
committees in compiling target lists is so significant as to compel finding the NSC System an agency. This ignores the
relevant Soucie inquiry, which asks not whether advice given to the President is significant, but only whether it is, in fact,
advice. Nothing in the record cited by Main Street indicates that any part of the NSC System exercises droneattack
See also George W. Bush, Decision Points 16871 (2010) (stating that, in 2002, President was informed of enhanced
interrogation techniques and personally decided which would be permitted or forbidden).
End of Document
21
Case 1:15-cv-02627-JG-RLM
Document
Filed(1996)
02/12/16
Schlabach
v. Internal Revenue Service, Not
Reported 29
in F.Supp.
78 A.F.T.R.2d 96-7411
1996 WL 887472
United States District Court, E.D. Washington.
John J. SCHLABACH, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.
No. CS96361RHW.
|
Nov. 5, 1996.
Opinion
WHALEY
*1 Before the Court is Plaintiff's Motion for Damages,
Expenses, and Attorney's Fees (Ct.Rec.18). Therein, Plaintiff
seeks damages, expenses, and attorney's fees in connection
with a Freedom of Information Act (FOIA), 5 U.S.C. 552
et seq., suit he filed in federal district court on June 26, 1996.
Other agencies inquiring about me

Plaintiff inquired into the status of his FOIA request in early
April, 1996.
He asserts that he was told that the requested information
had been compiled and would be sent out immediately. Two
weeks later, on April 16, 1996, he states that he again called
and was told that the requested information would be sent
out immediately. On April 19, 1996, Plaintiff received a
letter from Melia Berumen (Berumen), a Disclosure Officer
with the IRS. Therein, Berumen indicated that there had
been no charge for processing his request and forwarded
documents in the file pertaining to an active examination by
the Seattle District for the tax years 1993 through 1994. In
part, however, she also indicated that his request was too
broad to be considered a valid FOIA request and, further, that
information was deleted from 10 pages of the examination
file, and access was denied to 67 other pages of the same
file. The bases cited for this non-disclosure were 5 U.S.C.
552(b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
Correspondence with Other Federal Agencies
On April 22, 1996, Plaintiff filed an appeal letter, requesting

that the redacted and non-disclosed information be provided
to him immediately. This appeal was acknowledged by letter
dated May 7, 1996, which advised Plaintiff of the name and
address of the contact person in the event that he had any
questions concerning the status of the appeal. There is no
indication that Plaintiff received a final decision regarding his
appeal or that he attempted to check on the status of his appeal
before filing the instant Complaint on June 26, 1996. With
the Complaint, Plaintiff also filed a Motion Under Vaughn
v. Rosen to Require Detailed Justification, Itemization and
Indexing (Ct.Rec.2), in which he requested that Defendant
produce an inventory of every agency record or portion
thereof that the IRS asserted to be exempt from disclosure,
accompanied by a detailed justification statement. On August
2, 1996, Defendant filed a Statement of NonOpposition
to Plaintiff's Motion for a Vaughn Index (Ct.Rec.15), in
which it agreed to provide the materials requested by
Plaintiff within thirty days. Hence, by Order dated August 5,
1996, Plaintiff's Motion Under Vaughn v. Rosen to Require
Detailed Justification, Itemization and Indexing (Ct.Rec.2)
was granted. As required thereby, Defendant filed a Vaughn
index on September 6, 1996.
Grand Jury Investigations
*2 Thereafter, Plaintiff filed the instant motion, which seeks
Informants letterspayoffsrewards
a total of $ 79,195.00 1 in damages, expenses, and attorney

fees and costs. Specifically, Plaintiff requests payment for
Background
On January 16, 1996, Plaintiff filed a FOIA request with the
Internal Revenue Service (IRS), seeking:
a complete and thorough search of all filing systems
and locations for all records maintained by your agency
pertaining to me; John J. Schlabach, including. but not
limited to files and-documents captioned in, or whose
caption includes any protest group in the title for the years
1993 to the present, inclusive.
This request specifically includes, but is not limited to, all
records in the possession of The Internal Revenue Service,
as well as records maintained by the Criminal Investigation
Division, Examination Division, Collection Division, and
Informant's Control File.
Also I request that you provide me with copies of any and
all of the following records which pertain to me.
Tax Protester Groups
Document
Filed(1996)
02/12/16
Schlabach
Reported 29
in F.Supp.
78 A.F.T.R.2d 96-7411
ninety-three hours of legal research and writing 2 at a rate

of $75.00 per hour. The requested attorney's fees are $6,975.
Plaintiff asks that the Court double this amount based upon
Defendant's allegedly frivolous claim that the documents
withheld were exempt from disclosure. Plaintiff further seeks
reimbursement for the following:
Analysis
Plaintiff seeks these costs, damages, and fees pursuant to the
Freedom of Information Act, 4 which provides that,
[t]he Court may assess against the United States reasonable

attorney fees and other litigation costs reasonably incurred
in any case under this section in which the complainant has
substantially prevailed.
5 U.S.C. 552(a)(4)(E).
Plaintiff's potential recovery, however, is quite limited. As
a non-attorney pro se plaintiff, Plaintiff is not entitled to
an award of attorney's fees under FOIA. Carter v. Veterans
Admin., 780 F.2d 1479, 1481 (9th Cir.1986). Nor is there
any provision in the Freedom of Information Act that entitles
Plaintiff to recover compensatory or punitive damages; FOIA
permits recovery only of reasonable attorney fees and their
litigation costs, not damages. 5 U.S.C. 552(a)(4)(E). See
also Wren v. Harris, 675 F.2d 1144, 1147 (10th Cir.1982)
(The FOIA does not authorize an award of damages for a
violation thereof. See [5 U.S.C.] 552(a)(4).).
Further, although the Court has the discretion to award
Plaintiff the reasonable costs associated with this litigation,
Carter, 780 F.2d at 148182, it declines to do so. As
a preliminary matter, in order be eligible for such costs,
Plaintiff must demonstrate that he substantially prevailed
in his FOIA suit. 5 U.S.C. 552(a)(4)(E). Thus, he must
present convincing evidence that the following two threshold
conditions have been satisfied:
First, the plaintiff must show that
prosecution of the action could
reasonably have been regarded as
necessary. Second, the action must
be shown to have had substantial
causative effect on the delivery of the
information.
Exner v. F.B.I., 443 F.Supp. 1349, 1353 (S.D.Cal.1978)

(citation omitted) (suit necessary because plaintiff may have
been placed in personal danger due to leaks o: inaccurate
information), aff'd, 612 F.2d 1202 (9th Cir.1980). See also
Church of Scientology of California v. United States Postal
Serv., 700 F.2d 486, 491 (9th Cir.1983). The mere fact that
records were released after a suit was filed, in and of itself, is
insufficient to establish that Plaintiff substantially prevailed.
Church of Scientology, 700 F.2d at 491 (citing Cox v. United
States Dept. of Justice, 601 F.2d 1, 6 (D.C.Cir.1979). The
existence of both conditions is a factual determination for the
district court to resolve. Cox, 601 F.2d at 6.
*3 Here, Plaintiff has not demonstrated that this suit was
necessary, either to protecting his own or others' interests.
Nor has he demonstrated that the filing of this suit caused any
disclosures to be made by the IRS. At most, Plaintiffs suit
caused the IRS to comply with Plaintiffs request for a Vaughn
index, but did not cause the IRS to furnish Plaintiff any of the
previously-withheld information; to the extent that Plaintiff
has prevailed, his victory concerns only the Vaughn index.
In considering whether a FOIA suit had a causative effect,
some courts have considered the timing of the release of
documents and the intensity of the preceding litigation.
See, e.g., Exner, 443 F.Supp. at 1353 (plaintiff entitled to
award of attorney's fees and litigation costs where, inter
alia, the government vigorously opposed plaintiff's requests
at every stage); Cuneo v. Rumsfeld, 553 F.2d 1360, 1365
(D.C.Cir.1977) (causative effect found where, inter alia,
the government produced requested information after eight
years of tedious and hard-fought litigation). Here, the sum
total of the record indicates that this litigation lasted only
slightly more than six weeks and Plaintiff's demands were
met without any resistance. As such, Plaintiff has not met
his burden of producing convincing evidence of a causative
effect. Further, it is unclear whether some of the delay in
responding to Plaintiff was due to his broadly drawn request
and his apparent decision not to complete the appeals process
before filing this action. See, e.g., Ginter v. I.R.S., 648 F.2d
469 (8th Cir.1981) (overly broad request contributed to delay
in plaintiff's receipt of information).
Even if Plaintiff were eligible to receive reimbursement
for his litigation costs, he has not presented convincing
evidence demonstrating that he is entitled to receive them.
In the exercise of this discretion, the Court may consider
whatever factors it deems relevant. Exner, 443 F.Supp.
at 1352. Nevertheless, courts that have considered this
Document
Filed(1996)
02/12/16
Schlabach
Reported 29
in F.Supp.
78 A.F.T.R.2d 96-7411
issue have considered the following factors in making this

determination: (1) the benefit to the public deriving from the
case; (2) the commercial benefit to the complainant; (3) the
nature of the complainant's interest in the records sought;
and, (4) whether the government's withholding of the records
sought has a reasonable basis in law. Exner, 443 F.Supp. at
1352 (citing S.Rep. No. 93854, 93d Cong., 2d Sess. 17, 19
(1974).
The legislative history of the FOIA
makes it clear that Congress did not
intend an award of attorney's fees to be
automatic; rather, the trial court must
weigh the facts of each case against
the criteria of the existing body of
law ... and then exercise its discretion
in determining whether an award is
appropriate.
Church of Scientology, 700 F.2d at 492 (citation and internal
quotation omitted).
Public Interest
Taking each of these factors in turn, the Court considers first
the public benefit at issue. Under this criterion, for example,
*4 a court would ordinarily award
fees ... where a newsman was seeking
information to be used in a publication
or a public interest group was
seeking information to rther a project
benefitting the general public, but it
would not award fees if a tuslness was
using the FOIA to obtain data relating
to a competitor or as a substitute for
discovery in private litigation with the
government.
Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d
704 (D.C.Cir.1977) (quoting from S.Rep. No. 93854, 93d
Cong., 2d Sess. 19 (1974)). See, e.g., Goldstein v. Levi, 415
F.Supp. 303 (D.D.C.1976) (awarding attorney's fees based
on plaintiff's status as a television producer who had sought
information for use in a public television documentary and a
book). Here, Plaintiff has not demonstrated any public interest
whatsoever; his arguments rest solely on the general principle
that the law should be enforced. While true, this generalized
principle does not have a sufficient nexus to the public interest
to warrant an award of litigation costs under the facts of this
case. In fact, to the extent that Plaintiff seeks the names and
identities of confidential sources, such disclosure may, in fact,

have a negative public impact. Lovell at 433.
Commercial Benefit and Nature of the Interest

Because of the interplay between the second and third factors
the commercial benefit and the nature of the interest
are often considered together. Church of Scientology, 700
F.2d at 494.
Inquiry into the nature of interest
should lead the court to consider
whether the claimant seeks to protect
a private, purely commercial interest,
as opposed to a scholarly, journalistic,
or public interest. Nationwide Bldg.
Maintenance, Inc. v. Sampson, 559
F.2d 704, 712 (D.C.Cir.1977) .
(quoting S.Rep. No.2d Sess. 19
(1974)).... Both factors are intended
to distinguish cases in which the
claimant has a clear pecuniary or
other economic interest in seeking
disclosure, so that there is no need for
an added incentive to bring a claim
under the Act, from those where it is
unlikely that a claim would have been
brought absent the high probability
that fees and costs of suit would
be awarded against the intransigent
agency.
United Ass'n of Journeymen & Apprentices of the Plumbing
& Pipefitting Indus., Local 598 v. Department of the Army,
841 F.2d 1459, 1462 (9th Cir.1988). It is not improper
for a court to deny fee requests where the potential for
private commercial benefit is a sufficient incentive to
encourage plaintiffs' pursuits of their claims or where the
plaintiff intends only to protect a private interest. See, e.g.,
Cuneo v. Rumsfeld, 553 F.2d 1360, (D.C.Cir.1977); Werner
Continental, Inc. v. Farkas, 478 F.Supp. 815 (S.D.Ohio
1979), aff'd, 661 F.2d 935 (6th Cir.1981). Here, there is no
evidence that Plaintiff would derive any commercial benefit
from the information sought in his FOIA request. Nor is there
any indication of the nature of Plaintiff's interest other than
personal curiosity. Without more, the Court will not exercise
its discretion to award litigation costs.
Reasonable Basis in Law
Document
Filed(1996)
02/12/16
Schlabach
Reported 29
in F.Supp.
78 A.F.T.R.2d 96-7411
*5 In order to satisfy the reasonable basis in law

requirement, the Court need not find that the information
withheld was, in fact, exempt. Cuneo at 136566. To the
contrary,
[w]hat is required is a showing that
the government had a reasonable
basis in law for concluding that
the information in issue was exempt
and that it had not been recalcitrant
in its opposition to a valid claim
or otherwise engaged in obdurate
behavior.
Cuneo at 136566. See also Nationwide, 559 F.2d at
712. Plaintiff has not provided the Court with sufficient
information or analysis to permit an assessment of this.
Absent such argument and lacking any evidence or suggestion
that the IRS sought to improperly harass Plaintiff, the Court

will not exercise its discretion to award litigation costs.
In short, Plaintiff is not entitled to an award of either attorney's
fees or damages. Nor has he presented convincing evidence
of his eligibility for, or entitlement to, reasonable litigation
costs. Accordingly, IT IS HEREBY ORDERED:
Plaintiff's Motion for Damages, Expenses, and Attorney's
Fees (Ct.Rec.18) is DENIED.
IT IS SO ORDERED. The Clerk is directed to enter this order
and to provide copies to counsel.
All Citations
Not Reported in F.Supp., 1996 WL 887472, 78 A.F.T.R.2d
96-7411
Footnotes
1
2
Plaintiff states that he seeks a total of $72,220.00. However, by this Court's calculations the amounts request by Plaintiff
add up to $79,195.00 when the suggested award of attorney's fees is doubled, as per Plaintiff's request.
TABLE
Task
1. Legal research
2. Preparation of Summons and Complaint
3. Research related to motion for Vaughn index
4. Preparation of motion and brief re:Vaughn index
5. Research re: attorney's fees
6. Preparation of brief in support of motion
for attorney's fees
1. Books, materials, etc.

2. Travel, postage, phone & misc.
3. Court filing fee
3
4
Time (in hours)

16.5
10
13
25
9
19.5
93 hours
$ 50.00
$ 35.00
$ 160.00
4. Damages
65 documents disclosed at
$ 1,000.00 each
$65,000.00
Although Plaintiff requests $160.00 reimbursement for filing this action, the Court notes that the filing fee in the U.S.
District Court for the Eastern District of Washington is $120.00.
Plaintiff also seeks costs and fees pursuant to a comparable provision in the Privacy Act of 1974, 5 U.S.C. 552a(g)(2)
(B). However, because Plaintiff's Complaint was brought pursuant to FOIA, this motion is analyzed solely thereunder.
End of Document

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Case 1:15-cv-02627-JG-RLM Document 29 Filed 02/12/16 Page 1 of 40 PageID #: 1642

UNITED STATES DISTRICT COURT

UNITED STATES DEPARTMENT OF

Case 1:15-cv-02627-JG-RLM Document 29 Filed 02/12/16 Page 2 of 40 PageID #: 1643

Dated: Brooklyn, New York

[via CM/ECF and certified first-class mail]

Filed 02/12/16 Page 3 of 40 PageID #: 1644

request. For the following reasons, defendants' motions are

Corey Davis, Tucson, AZ, pro se.

2. Any documents in [the TSA's] possession regarding the

Ameet B. Kabrawala, United States Attorney's Office,

3. The names and titles of all flight crew members on the

OPINION AND ORDER

4. Any documents of the TSA requiring commercial

Attorneys and Law Firms

ROSS, District Judge.

5. The name of the air marshal assigned to the flight

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 4 of 40 PageID #: 1645

*2 As to plaintiff's request for information related to

II. BOP Requests

a. FOIA Request No. 201101370

Plaintiff's complaint sought to compel disclosure of several

2. Video surveillance footage of the East Building, sixth

Any and all records documenting the

Compl., Dkt. # 1, at 56; see Johnson Decl. 6. The BOP

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 5 of 40 PageID #: 1646

(7)(C), id.; however, the BOP subsequently sent a CD

b. FOIA Request. No.201102164

3. Any and all records documents the FBI's acceptance or

c. Third FOIA Request to the BOP

1. Any and all records pertaining to an August 8, 2009

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 6 of 40 PageID #: 1647

3. Verification from the outgoing legal mail logs

the FBI for information it possessed about him and related

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 7 of 40 PageID #: 1648

agency are accorded a presumption of good faith. Carney,

1. Coates' Ability to Provide a Declaration

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 8 of 40 PageID #: 1649

the affidavit be submitted by an official involved in the

*8 The court need not resolve this issue as a matter of

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 9 of 40 PageID #: 1650

Under FOIA, [a]n agency's obligation to process a request

Description of records sought. You must describe the

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 10 of 40 PageID #: 1651

appears to describe the records he sought in sufficient detail

3. Withholding Based on FOIA Exemptions

proving the applicability of the exemption, which it may

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 11 of 40 PageID #: 1652

or absence of information identifying plaintiff constitutes

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 12 of 40 PageID #: 1653

19 F.3d at 814. In addition, FOIA declarants may include

2016 Thomson Reuters. No claim to original U.S. Government Works.

Filed 02/12/16 Page 13 of 40 PageID #: 1654

of FOIA requests and establishing when such fees should be