National Security Counselors v. Central Intelligence Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2019 Decided August 11, 2020

No. 18-5047

NATIONAL SECURITY COUNSELORS,
APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,
APPELLEE

Consolidated with 18-5048

Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cv-00444)
(No.1:11-cv-00445)

Kelly B. McClanahan argued the cause and filed the briefs
for appellant.

Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was
Sharon Swingle, Attorney.

Before: SRINIVASAN, Chief Judge, ROGERS, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: National Security Counselors
(NSC) is a Virginia-based non-profit organization that
disseminates national security materials to the public. NSC
frequently seeks to obtain records from intelligence and
defense agencies through the Freedom of Information Act.

NSC filed three lawsuits in federal district court on the
same day in 2011. The lawsuits together raised forty-five
claims against six federal agencies arising out of numerous
FOIA requests initiated by NSC. The district court, in a series
of decisions, eventually ruled in favor of the government on all
of NSC’s claims. See Nat’l Sec. Counselors v. CIA (NSC I),
898 F. Supp. 2d 233, 290–91 (D.D.C. 2012); Nat’l Sec.
Counselors v. CIA (NSC II), 960 F. Supp. 2d 101, 208–10
(D.D.C. 2013); Nat’l Sec. Counselors v. CIA (NSC III), 206 F.
Supp. 3d 241, 288–90 (D.D.C. 2016).

NSC now appeals, raising a number of challenges to the
district court’s decisions. In this opinion, we individually
address (and reject) three of NSC’s claims: two claims
concerning distinct FOIA requests made to the Central
Intelligence Agency and a third claim concerning the
Department of Justice’s assertion of attorney-client privilege in
response to a FOIA request. While we do not separately
discuss NSC’s remaining claims, we find that none has merit
and thus affirm the district court in all respects.

I.

FOIA allows agencies to assess varying fees against
requesters depending on the purpose for which the information
is sought, the identity of the requester, or both. See 5 U.S.C.
§ 552(a)(4)(A). In August 2010, NSC submitted FOIA

3

requests to the CIA for a listing of all FOIA requesters from
fiscal years 2008 to 2010 organized under each of four fee
categories contemplated by FOIA: “news media,”
“educational or scientific,” “commercial,” or “all other.” NSC
FOIA Requests to CIA (Aug. 8, 2010), 1 J.A. 103–15; see 5
U.S.C. § 552(a)(4)(A)(ii)(I)–(III).

The CIA declined to process the requests, explaining,
among other things, that FOIA does not require an agency to
create records not otherwise in existence. NSC then brought
an action under FOIA in the district court, challenging the
agency’s refusal to process the requests. The district court
granted summary judgment in favor of the CIA. See NSC II,
960 F. Supp. 2d at 161. We review the district court’s grant of
summary judgment de novo, see Nat’l Sec. Counselors v. DOJ,
848 F.3d 467, 470 (D.C. Cir. 2017), and agree with the court’s
disposition.

FOIA provides for “disclosure of certain documents which
the law requires the agency to prepare or which the agency has
decided for its own reasons to create.” NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 162 (1975). But “FOIA imposes no duty
on the agency to create records.” Forsham v. Harris, 445 U.S.
169, 186 (1980). FOIA, that is, only requires disclosure of
documents that already exist, not the creation of new records
not otherwise in the agency’s possession. See Yeager v. Drug
Enf’t Admin., 678 F.2d 315, 321 (D.C. Cir. 1982); H.R. Rep.
No. 104–795, at 22 (1996).

Here, NSC’s request for the CIA to produce listings
according to four fee categories of all FOIA requesters over a
two-year period would require the agency to create new
records, not to disclose existing ones. The CIA’s Information
Review Officer, whose responsibilities include final review of
documents that are the subject of FOIA requests, submitted a

4

declaration in the district court that sets out the relevant
capabilities of the agency’s FOIA records system. Declaration
of Martha Lutz ¶ 11 (Dec. 13, 2011) (Lutz Decl.), 1 J.A. 196.
As she explained, “[f]ee category is not a mandatory field in
CIA’s current electronic FOIA records system; therefore, this
information is often not included in a FOIA request record.”
Id. To produce listings of FOIA requesters by fee category per
NSC’s request, then, “the CIA’s FOIA analysts would be
required to individually review each FOIA request submitted
from 2008 to 2010 and manually sort thousands of requests
based on fee category.” Id. That process would
quintessentially entail the creation of new records, not the
disclosure of preexisting ones.

According to NSC, “sorting a database by field is not
creating records, and releasing the information which resulted
from that sorting action is also not creating records.” NSC Br.
16. We have no occasion here, however, to consider whether
sorting a database by field would involve the creation of new
records. As the CIA’s declaration establishes, the agency’s
FOIA database does not contain the relevant field (i.e. fee
category) as mandatory information in the first place. Lutz
Decl. ¶ 11, 1 J.A. 196.

NSC suggests more broadly that “there are no ‘records’ to
speak of in an electronic database in which information is
entered into fields.” NSC Br. 16. FOIA makes clear, though,
that a “record” within the meaning of the statute includes
information “that would be an agency record . . . when
maintained by an agency in any format, including an electronic
format.” 5 U.S.C. § 552(f)(2)(A); see Yeager, 678 F.2d at 321.
But regardless of whether a given record exists in an electronic
or paper format (or both), the statute only calls for the
disclosure of existing records, not the generation of new ones.
And whatever questions may arise in future cases about when

5

disclosing the results of an electronic search of records entails
creation of a record, here, responding to NSC’s request would
require manual review and sorting of numerous electronic
records and the ensuing compilation of lists that do not
otherwise exist. That exercise self-evidently amounts to
records creation, which FOIA does not require.

II.

We next consider another FOIA request NSC made to the
CIA, this one for “all Central Intelligence Agency (‘CIA’)
records pertaining to the IBM supercomputer named
‘Watson.’” CIA Request Correspondence (Feb. 16, 2011), 1
J.A. 275. NSC added “that agencies have a duty to construe
the subject material of FOIA requests liberally to ensure
responsive records are not overlooked.” Id. The CIA declined
to process the request “in its current form because it would
require the Agency to perform an unreasonably burdensome
search.” CIA Request Correspondence (Mar. 2, 2011), 1 J.A.
280. The CIA invited NSC “to refine the scope of [its] request
(such as contracts, if they exist, which would explain records
pertaining to ‘Watson’) to enable [the agency] to conduct a
reasonable search for responsive information.” Id.

NSC did not narrow the scope of its request, but instead
filed a lawsuit challenging the CIA’s response. The district
court granted summary judgment to the CIA. NSC II, 960 F.
Supp. 2d at 163. We again agree with the district court’s
disposition.

FOIA imposes obligations on agencies to disclose records
for requests that “reasonably describe[] such records.” 5
U.S.C. § 552(a)(3)(A). We have explained that agencies “need
not honor a request that requires ‘an unreasonably burdensome
search.’” Am. Fed’n of Gov’t Emps. Local 2782 v. U.S. Dep’t

6

of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (citing
Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978)). We have
also established that agencies should read FOIA requests “as
drafted, not as either agency officials or [the requester] might
wish it was drafted.” Miller v. Casey, 730 F.2d 773, 777 (D.C.
Cir. 1984). The upshot is that, when the request as drafted
would require an agency to undertake an unreasonably
burdensome search, the agency can decline to process the
request.

That is what happened here. As the CIA’s Information
Review Officer explained in her declaration, “it is difficult to
determine where responsive information would likely be
located within the Agency because the request is so general.”
Lutz. Decl. ¶ 31, 1 J.A. 204. “CIA’s records,” she advised,
“are decentralized and compartmented. Each directorate . . .
must determine which components and/or records systems
within the directorate might reasonably be expected to possess
records responsive to a particular request.” Id. at ¶ 30. As a
result, “the CIA would be required to search every office for
any documents containing the word ‘Watson,’” which would
amount to a “massive undertaking.” Id. at ¶ 31, 1 J.A. 205.

NSC does not dispute that a search for all documents
anywhere in the CIA related to “Watson” would be unduly
burdensome. NSC instead submits that the CIA gave the
request an “overbroad reading,” in that the request should have
been understood to encompass only “records about how the
development of Watson impacted the Intelligence Community,
specifically with respect to the application of comparable
artificial intelligence systems to intelligence analysis.” NSC
Br. 27. The request, though, does not say that. Instead, it is
framed broadly to seek “all [CIA] records pertaining to the
IBM supercomputer ‘Watson,’” with an added emphasis “to
construe” it “liberally.” CIA Request Correspondence, 1 J.A.

7

275. To be sure, NSC, when asking for a public-interest fee
waiver in its letter transmitting the request, said that responsive
records would “serve as a case study for the CIA’s involvement
in artificial intelligence research.” Id. at 277. But the request
itself was not so confined, and NSC did not refine its request
after the CIA invited it to do so.

The agency interpreted NSC’s request as drafted, as our
decisions direct. Miller, 730 F.2d at 777. And the agency and
the district court correctly concluded that, as drafted, the
request called for an unreasonably burdensome search.

III.

We next consider a FOIA request submitted by NSC to the
Office of Legal Counsel (OLC) in the Department of Justice.
The request sought OLC opinions pertaining to various statutes
including FOIA itself, the Privacy Act, and the Federal Records
Act. See NSC II, 960 F. Supp. 2d at 119. OLC withheld a
number of its responsive opinions under FOIA Exemption 5
based on the attorney-client privilege. See id. at 119–20, 196.
For two of the opinions, the district court determined that OLC,
in other official settings, had referenced the opinions’ legal
conclusions or conveyed a summary of the opinions. Id. at
197–99. The court thus ordered OLC to disclose those portions
of the two opinions that corresponded with the disclosures in
the other settings, id. at 199–200, which OLC did.

The district court, in ordering disclosure of those parts of
the two opinions, relied on decisions holding that, when
information has been officially acknowledged and voluntarily
disclosed in a public domain, “a FOIA plaintiff may compel
disclosure of that information even over an agency’s otherwise
valid exemption claim.” ACLU v. U.S. Dep’t of Def., 628 F.3d
612, 620 (D.C. Cir. 2011) (citing Wolf v. CIA, 473 F.3d 370,

8

378 (D.C. Cir. 2007)); see NSC II, 960 F. Supp. 2d at 198. The
district court subsequently rejected NSC’s contention that it
was entitled to the full contents of the two OLC opinions, not
just the portions corresponding with the official
acknowledgments. NSC III, 206 F. Supp. 3d at 288. NSC now
renews its argument that OLC should have been compelled to
release the full contents of the two opinions. We disagree.

NSC draws a distinction between two potential grounds
for compelling disclosure of the full OLC opinions
notwithstanding OLC’s assertion of the attorney-client
privilege: (i) the above-referenced “official acknowledgment”
doctrine, under which an agency cannot withhold information
pursuant to any FOIA exemption when there has previously
been a voluntary, official acknowledgment of the information
to the public, see, e.g., Wolf, 473 F.3d at 378; and (ii) waiver
of the attorney-client privilege itself as to the two opinions.
NSC does not dispute that, with regard to the first of those
potential grounds (which it describes as “significantly
narrower”), it was entitled to disclosure only of the parts of the
OLC opinions that the district court ordered be disclosed, not
the full opinions. See NSC Br. 52–53. NSC’s argument instead
is that it was entitled to the full OLC opinions because there
had been a waiver of the attorney-client privilege. See id.
According to NSC, waiver of the attorney-client privilege
generally effects a waiver as to all material relating to the same
subject matter, thus requiring disclosure of the full OLC
opinions. Id.

We conclude, though, that there was no waiver of the
attorney-client privilege with regard to the two OLC opinions.
In the case of one of the opinions, the waiver ostensibly
occurred when OLC cited a legal conclusion contained in it in
the course of another, publicly disclosed opinion. See NSC II,
960 F. Supp. 2d at 198. In the case of the second OLC opinion,

9

the waiver ostensibly occurred when an OLC attorney provided
a “summary of a summary” of the opinion in an interagency
committee meeting. See id. at 197. Neither of those events
effected a waiver of the privilege with regard to the two
referenced opinions.

We need not assess whether the nature of the references to
the two opinions sufficed to constitute a waiver of the attorney-
client privilege. That is because, in any event, the references
were made by the attorney (OLC), not the client (the agency to
which OLC gave advice). Disclosure “by the holder” of the
privilege can give rise to a waiver, In re Subpoenas Duces
Tecum, 738 F.2d 1367, 1369 (D.C. Cir. 1984), and as NSC
recognizes, it “is axiomatic that the attorney-client privilege is
held by the client,” NSC Br. 53 n.7. As a result, an “attorney
is given the power to claim the privilege on behalf of the client
but his betrayal of the client’s secret is not treated as a waiver
of the privilege.” 26A Charles Alan Wright et al., Federal
Practice & Procedure § 5724 (1st ed. 2020); see also Hanson
v. USAID, 372 F.3d 286, 294 (4th Cir. 2004) (“an attorney may
not unilaterally waive the privilege that his client enjoys”); In
re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984) (the
privilege applies if “not waived by the client”). OLC’s own
disclosures concerning the two opinions at issue, then, did not
effect a waiver of the attorney-client privilege, at least absent
any indication (absent here) that OLC was acting on behalf of
the client when making the disclosures. See Hanson, 372 F.3d
at 294.

It is true that the district court, in the course of explaining
that there had been an official acknowledgment of the two
opinions so as to implicate the official-acknowledgment
doctrine, went on to say that there had also been a waiver of the
attorney-client privilege. See NSC II, 960 F. Supp. 2d at 198.
For the reasons explained, however, we conclude that there was

10

no such waiver in the circumstances. We therefore have no
occasion to address whether, if there had been a waiver of the
privilege in connection with the two opinions, disclosure of the
full opinions would have been necessary as a matter of course.
See In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997).
Rather, because there was no waiver to begin with, we reject
NSC’s argument that it was entitled to disclosure of the full
OLC opinions on a privilege-waiver theory.

* * * * *

NSC advances an array of additional arguments
concerning various aspects of district court’s decisions under
review. We have given those arguments careful consideration
and conclude that the district court did not err in its
dispositions. For the foregoing reasons, we affirm the district
court’s judgments.

It is so ordered.