UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ACCURACY IN MEDIA, et al.,

Plaintiffs,

v.

U.S. DEPARTMENT OF DEFENSE, et Civ. Action No. 14-1589 al., (EGS/DAR)

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiffs Accuracy in Media, Inc.; Roger L. Aronoff;

Captain Larry W. Bailey, USN (Ret.); Lieutenant Colonel Kenneth

Benway, USA (Ret.); Colonel Richard F. Brauer, Jr., USA (Ret.);

Clare M. Lopez; Admiral James A. Lyons, Jr., USN (Ret.); and

Kevin Michael Shipp (collectively, “Plaintiffs”) have made a

series of requests for information related to the 2012 attack on

the United States Embassy in Benghazi, Libya. See generally Am.

Compl., ECF No. 31.1 They now sue U.S. Department of Defense and

its components (“DOD”); U.S. Department of State (“State

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 Department”); U.S. Department of Justice (“DOJ”) and its

component the Federal Bureau of Investigation (“FBI”); and the

Central Intelligence Agency (“CIA”) (collectively, “Defendants”)

under the Freedom of Information Act (“FOIA”),

,

to obtain that information. See

Pending before the Court are Defendants’ Motion for Summary

Judgment, see Defs.’ Mot. for Summ. J., ECF No. 68; and

Plaintiffs’ Cross-Motion for Summary Judgment, see Pls.’ Opp’n

Defs.’ Mot. Summ. J., Cross-Mot. for Summ. J., & Mot. Leave

Propound Interrog. to DOD, ECF No. 71. Also pending before this

Court is Plaintiffs’ Motion for Leave to Propound Interrogatory

to DOD. See id.; ECF No. 73. On January 7, 2019, the Court

referred the case to a magistrate judge for a Report and

Recommendation (“R. & R.”) on these pending motions, and the

case was randomly referred to Magistrate Judge Deborah A.

Robinson. See generally Docket for Civ. Act. No. 14-1589. On

August 27, 2020, Magistrate Judge Robinson issued her R. & R.

recommending that the Court grant in part and deny in part

Defendants’ Motion for Summary Judgment, ECF No. 68; grant in

part and deny in part Plaintiffs’ Cross-Motion for Summary

Judgment, ECF No. 71; and deny Plaintiffs’ Motion for Leave to

Propound Interrogatory to DOD, ECF No. 73. See R. & R., ECF No.

83 at 33.

2 Plaintiffs raise several objections to Magistrate Judge

Robinson’s R. & R. See generally Pls.’ Obj. Magistrate Judge’s

R. & R. (“Pls.’ Objs.”), ECF No. 87. Upon careful consideration

of the R. & R., the objections and opposition thereto, the

applicable law, and the entire record herein, the Court hereby

ADOPTS Magistrate Judge Robinson’s R. & R., ECF No. 83; GRANTS

IN PART and DENIES IN PART Defendants’ Motion for Summary

Judgment, ECF No. 68; GRANTS IN PART and DENIES IN PART

Plaintiffs’ Cross-Motion for Summary Judgment, ECF No. 71; and

DENIES Plaintiffs’ Motion for Leave to Propound Interrogatory to

DOD, ECF No. 73.

II. Background

A. Factual

In 2014, Plaintiffs submitted over 40 separate FOIA

requests to Defendants to obtain records related to the 2012

attack on the United States Embassy in Benghazi, Libya. See

generally Am. Compl., ECF No. 31. Plaintiffs initiated this

litigation on September 19, 2014 to resolve those FOIA requests,

see Compl., ECF No. 1; and on March 2, 2018, the parties agreed

to narrow the issues, see Joint Mot. to Amend Briefing Schedule,

ECF No. 65.

The Court briefly recounts the FOIA requests that are

currently at issue below.

3 1. DOD

Plaintiffs sent two letters to the Defense Intelligence

Agency (“DIA”) on April 7, 2014 and May 28, 2014. See Pls.’

Counter-Statement of Material Facts as to Which There is a

Genuine Issue (“SOMF”), ECF No. 71-5 ¶ 2. The first letter

requested “records of (1) maps depicting all assets within

fifteen hundred miles of Benghazi, Libya on September 11 and 12,

2012; (2) DOD assets that were pre-positioned off the coast of

Tripoli on October 18, 2011; and (3) records in calendar year

2012 of the threat to U.S. personnel because of al-Quaida or

Ansar al-Shariah or other belligerent build-up in Benghazi.”

. The second letter requested “(1) OPREP-3 PINNACLE

report(s) used to provide any DOD division with notification of,

or information about, the September 11 and 12, 2012 attacks on

the U.S. facilities in Benghazi, Libya”; and (2) “records of all

directives, orders, and other communications regarding the

readiness status of United States armed forces on the

anniversary of the September 11, 2001 attacks on the World Trade

Center” between July 1, 2012 and September 30, 2012.

.

The DIA conducted two searches of its Record Message

Traffic database.

. The agency identified 148 responsive

records, referred 92 records to other agencies for review, and

determined that it would withhold 25 records in part and 30

records in full pursuant to various FOIA exemptions.

¶¶ 33-

4 34. The DIA’s process included an unfruitful search for the

OPREP-3 PINNACLE reports, even though it “is not the unit

responsible for issuing” the requested reports.

.

On March 31, 2014, Plaintiffs sent a FOIA request to the

Navy, Marine Corps, and European Command (“EUCOM”) for “orders

to, NAVSTA Rota personnel to get ready to deploy, and if

applicable, to deploy”; “orders [to an airborne special

operations unit in Croatia] to deploy to NAS Sigonella”; and

“orders to, NAS Sigonella personnel to get ready to deploy, and

if applicable, to deploy.”

. On October 1, 2014,

Plaintiffs sent a FOIA request to the African Command

(“AFRICOM”) for “records of all communications generated in

March of 2011, regarding Gaddafi’s expressed interest in a truce

and possible abdication and exile out of Libya.”

.

These DOD units conducted extensive searches for responsive

records. See

. As relevant here, EUCOM produced a

redacted copy of the Executive Order (“EXORD”) from 3:00 A.M.

September 12, 2012, which “is the initial written order

directing EUCOM to execute an action in response to the

September 11, 2012 attack on the United States mission in

Benghazi, Libya.” See

. DOD also located 12 pages of

maps responsive to Plaintiffs’ April 7, 2014 request, but

determined that it would withhold these records in full pursuant

5 to Executive Order 13,526 and FOIA Exemption 1. See

¶¶ 38-

40.

2. CIA

On February 24, 2014 and October 1, 2014, Plaintiffs

submitted two FOIA requests to the CIA.

. The CIA

conducted extensive searches for responsive records. See

. As relevant here, the CIA determined that several records

from the Inspector General (“IG”) were responsive to Plaintiffs’

October 2014 request.

. The agency concluded that it

could redact certain information in those IG files pursuant to

Section 6 of the Central Intelligence Agency Act of 1949 and

Section 102(A)(i)(1) of the National Security Act of 1947.

. It also withheld information pursuant to various FOIA

exemptions. See

.

3. FBI

On February 21, 2014, Plaintiffs requested from the FBI

accounts from survivors about the September 11, 2012 attack in

Benghazi, including the FBI’s 302 Interview Reports. See

. The FBI has never made these alleged reports public.

.

B. Procedural

On May 10, 2018, Defendants moved for summary judgment. See

Defs.’ Mot. for Summ. J., ECF No. 68. Plaintiffs filed their

opposition to Defendants’ Motion for Summary Judgment as well as

6 their Cross-Motion for Summary Judgment on June 25, 2018. See

Pls.’ Opp’n Defs.’ Mot. Summ. J., Cross-Mot. for Summ. J., &

Mot. Leave Propound Interrog. to DOD, ECF No. 71. Defendants

filed a brief in response on July 27, 2018, see Defs.’ Reply

Supp. Defs.’ Mot. Summ. J. & Opp’n Pls.’ Cross-Mot. Summ. J.,

ECF No. 77; and Plaintiffs filed their reply on August 27, 2018,

see Pls.’ Mem. Reply Defs.’ Opp’n Pls.’ Mot. Summ. J., ECF No.

80.

Plaintiffs also moved for leave to propound an

interrogatory to DOD. See Pls.’ Opp’n Defs.’ Mot. Summ. J.,

Cross-Mot. for Summ. J., & Mot. Leave Propound Interrog. to DOD,

ECF No. 71. Defendants filed a brief in opposition on July 9,

2018, see Defs.’ Opp’n Pls.’ Mot. Leave Propound Discovery

Against Def. DOD, ECF No. 74; and Plaintiffs filed their reply

on July 16, 2018, see Pls.’ Reply Def. DOD Opp’n Mot. Leave

Propound Interrog., ECF No. 75.

On January 7, 2019, the Court referred the case to a

magistrate judge for a Report and Recommendation (“R. & R.”) on

these pending motions, and the case was randomly referred to

Magistrate Judge Deborah A. Robinson. See generally Docket for

Civ. Act. No. 14-1589. On August 27, 2020, Magistrate Judge

Robinson issued her R. & R. recommending that the Court grant

Defendants’ Motion for Summary Judgment except as to the FBI’s

7 Glomar response and deny Plaintiffs’ motions except as to the

Glomar issue. See R. & R., ECF No. 83 at 33.

On September 23, 2020, Plaintiffs filed objections to the

R. & R. See Pl.’s Objs., ECF No. 87. Defendants filed a notice

informing the Court that (1) it would not raise objections to

the R. & R.; and (2) the FBI was withdrawing its Glomar response

and had commenced a search for responsive records. See Defs.’

Notice Regarding R. & R., ECF No. 86. Defendants also filed a

brief in opposition to Plaintiffs’ objections on November 23,

2020. See Defs.’ Response Pls.’ Objs. Magistrate’s R. & R.

(“Defs.’ Opp’n”), ECF No. 91.

The motions are now ripe and ready for adjudication.

III. Legal Standard

A. Objections to a Magistrate Judge’s Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject, or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also

(b)(1)(C) (“A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the magistrate judge.”). A district court “must

determine de novo any part of the magistrate judge’s disposition

8 that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

Court reviews the [R. & R.] only for clear error.” Houlahan v.

Brown,

(D.D.C. 2013) (citation and

internal quotation marks omitted). “Under the clearly erroneous

standard, the magistrate judge’s decision is entitled to great

deference” and “is clearly erroneous only if on the entire

evidence the court is left with the definite and firm conviction

that a mistake has been committed.” Buie v. Dist. of Columbia,

No. CV 16-1920 (CKK),

, at *3 (D.D.C. Sept. 12,

2019) (citing Graham v. Mukasey,

(D.D.C.

2009)) (internal quotation marks omitted).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for the objection[s].” LCvR 72.3(b). “[O]bjections

which merely rehash an argument presented and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA,

(D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133,

, at *3 (E.D. Pa. Oct. 30, 2009)). The

Court reviews Plaintiffs’ objections de novo.

9 B. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc.,

(1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex,

.

A party opposing a summary judgment motion must show that a

genuine factual issue exists by “(A) citing to particular parts

of materials in the record . . . or (B) showing that the

materials cited do not establish the absence . . . of a genuine

dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the

moving party’s affidavits will be accepted as true unless the

opposing party submits his own affidavits or other documentary

evidence contradicting the assertion. See Neal v. Kelly, 963

(D.C. Cir. 1992). However, “the inferences to be

drawn from the underlying facts . . . must be viewed in the

light most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

(1986) (citation and internal quotation marks

omitted).

C. FOIA

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). It was enacted to “pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose,

, 360–61 (1976) (quoting

Rose v. Dep’t of the Air Force,

(2d Cir.

1974)).

Although FOIA is aimed toward “open[ness] . . . of

government,” Jud. Watch, Inc. v. U.S. Dep’t of Com.,

(D.D.C. 2019); Congress acknowledged that

“legitimate governmental and private interests could be harmed

by release of certain types of information,” Critical Mass

Energy Project v. Nuclear Regul. Comm’n,

(D.C.

Cir. 1992) (citation and internal quotation marks omitted). As

11 such, pursuant to FOIA’s nine exemptions, an agency may withhold

certain requested information.

(b)(1)-(9).

However, “because FOIA establishes a strong presumption in favor

of disclosure, requested material must be disclosed unless it

falls squarely within one of the nine exemptions.” See Burka v.

U.S. Dep't of Health & Hum. Servs.,

, 515 (D.C. Cir.

1996) (citations omitted).

FOIA cases are usually and appropriately resolved on

motions for summary judgment. Brayton v. Off. of the U.S. Trade

Rep.,

(D.C. Cir. 2011). An agency has the

burden of demonstrating that “each document that falls within

the class requested either has been produced, is unidentifiable,

or is wholly [or partially] exempt from the Act’s inspection

requirements.” Goland v. CIA,

(D.C. Cir. 1978)

(citation and internal quotation marks omitted).

In reviewing a summary judgment motion in the FOIA context,

the court must conduct a de novo review of the record, see

(a)(4)(B); but may rely on agency declarations, see

SafeCard Servs. v. SEC,

(D.C. Cir. 1991).

Agency affidavits or declarations that are “relatively detailed

and non-conclusory” are accorded “a presumption of good faith,

which cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents.”

(citation

and internal quotation marks omitted). The Court may award

12 summary judgment solely on the basis of information provided by

the agency in declarations when the declarations describe “the

documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor

by evidence of agency bad faith.” Mil. Audit Project v. Casey,

(D.C. Cir. 1981) (citation and internal

quotation marks omitted).

IV. Analysis

A. Magistrate Judge Robinson Correctly Concluded that DOD Conducted an Adequate Search

To prevail on summary judgment, an agency must show “beyond

material doubt . . . that it has conducted a search reasonably

calculated to uncover all relevant documents.” Weisberg v. DOJ,

(D.C. Cir. 1983). It must demonstrate “that

it made a good faith effort” to perform this search, “using

methods which can be reasonably expected to produce the

information requested.” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990). If a FOIA requester challenges the

adequacy of the agency’s search, “the agency may meet its burden

by providing ‘a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials . . . were

13 searched.” Iturralde v. Comptroller of Currency,

,

313–14 (D.C. Cir. 2003). These affidavits “are accorded a

presumption of good faith.” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991).

A court may not grant summary judgment to the agency “if

the record raises substantial doubts regarding the agency’s

efforts, ‘particularly in view of well[-]defined requests and

positive indications of overlooked materials.’” Heartland All.

for Hum. Needs & Hum. Rts. v. U.S. Immigr. & Customs Enf’t,

, 110 (D.D.C. 2019) (quoting Valencia-Lucena v.

U.S. Coast Guard,

(D.C. Cir. 1999)). The

burden is on the FOIA requester to produce “countervailing

evidence” creating a genuine dispute of material fact,

(quoting Morley v. C.I.A.,

(D.C. Cir.

2007)); and the requester “can only . . . rebut[]” the agency’s

affidavits “with clear evidence of bad faith,” Bigwood v. U.S.

Dep’t of Def.,

(D.D.C. 2015). “[T]he

fact that a particular document was not found does not

demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of

U.S. Dep’t of Just.,

(D.C. Cir. 2007).

Similarly, “[m]ere speculation that as yet uncovered documents

may exist does not undermine the finding that the agency

conducted a reasonable search for them.” SafeCard Servs.,

.

14 Here, Magistrate Judge Robinson determined that DOD is

entitled to a presumption of good faith as to the adequacy of

its search because “it submitted a ‘reasonably detailed’

declaration from Mark Herrington, the Associate Deputy General

Counsel in the DoD Office of General Counsel” (“Mr. Herrington”)

that sufficiently “explain[ed] how the searches for responsive

records were conducted.” R. & R., ECF No. 83 at 9-10. Plaintiffs

object to this conclusion, arguing that the agency’s search was

inadequate because: (1) DOD is not entitled to a presumption of

good faith; and (2) DOD failed to produce certain responsive

records. For the reasons explained below, the Court rejects both

arguments and ADOPTS the R. & R. with respect to the adequacy of

DOD’s search.

1. Plaintiffs Have Not Overcome the Presumption of Good Faith Owed DOD

Plaintiffs raise two objections as to Magistrate Judge

Robinson’s conclusion that DOD’s affidavit is entitled to a

presumption of good faith. Plaintiffs first object that

Magistrate Judge Robinson did not consider DOD’s

misrepresentations regarding the timing of the orders

transmitted on September 11 and 12, 2012 after the attack on

Benghazi. See Pls.’ Objs., ECF No. 87 at 9-18. To support their

objection, they cite testimony from former Secretary of Defense

Leon Panetta (“former Secretary Panetta”) to a House Select

15 Committee that the first order following the attack was

transmitted at 8:39 P.M. on September 11, 2012. See Pls.’ Objs.,

ECF No. 87 at 9-18. Plaintiffs argue that these statements are

“evidence of bad faith” because the earliest order DOD produced

in this case was the 3:00 A.M. EXORD. Id. at 16.

Plaintiffs’ objection fails because the evidence they cite

is entirely consistent with DOD’s representations. In the

congressional testimony, former Secretary Panetta explained that

the National Military Command Center issued a formal order at

8:39 P.M. that was “the oral direction[] that commenced the

action for the task forces and the other units to move.” Clarke

Decl., Ex. 3 (“Panetta Test.”), ECF No. 71-1 at 15-16.

Similarly, in the affidavit DOD submitted, Mr. Herrington

explains that the 3:00 A.M. EXORD was “the first written order”

and that “the initial orders were conveyed verbally” earlier in

the night. Herrington Decl., ECF No. 68-4 ¶¶ 16-22. DOD also

submitted an accompanying exhibit that details the timeline of

orders even more clearly. Specifically, the timeline states that

former Secretary Panetta “provide[d] verbal authorization” for

various military units to prepare to deploy between 6:00 P.M.

and 8:00 P.M. on September 11, 2012. See Timeline of Dep’t of

Def. Actions on September 11-12, 2012 (“Timeline”), ECF No. 87-1

at 1. It explains that “[d]uring this period, actions [we]re

verbally conveyed from the Pentagon to the affected Combatant

16 Commands in order to expedite movement of forces upon receipt of

formal authorization.” Id. The timeline further records that at

8:39 P.M., the National Military Command Center “transmit[ted]

formal authorization” to move certain military units. Id. at 2.

Plaintiffs’ objection thus fails to address the factual

record in this case. The evidence from both parties supports

DOD’s claim that the order issued at 8:39 P.M. was a verbal

order. Plaintiffs have not offered any evidence that this order

was also reduced to writing that could have been produced here,

and indeed, the evidence suggests that it never was. Cf. Panetta

Test., ECF No. 71-1 at 15-16; Herrington Decl., ECF No. 68-4 ¶¶

16-22. Because Plaintiffs have not pointed to any actual

discrepancy between former Secretary Panetta’s public statements

and DOD’s FOIA production, their argument about the 8:39 P.M.

order cannot overcome the presumption of DOD’s good faith.

Plaintiffs also object that Magistrate Judge Robinson did

not appropriately consider certain other details in the Final

Report of the Select Committee on the Events Surrounding the

2012 Terrorist Attack in Benghazi, H. Rep. No. 114-848 (2016).

See Pls.’ Objs., ECF No. 87 at 9-22. They explain that the

following constitutes evidence of bad faith: former Secretary

Panetta’s “testimony [before Congress] conflicted with known

facts”; “his actions [on the night of the attack] were

contradictory”; he “professed initial ignorance of the

17 particulars of the siege”; and his “subordinates had assured him

that forces were moving when no such order had been

transmitted.” Id. at 16.

The Court agrees with Magistrate Judge Robinson that this

information “is of little significance.” R. & R., ECF No. 83 at

14. Plaintiffs are attempting to cast doubt on DOD’s search by

questioning the reliability of former Secretary Panetta’s

testimony to a House Select Committee. See Pls.’ Objs., ECF No.

87 at 9-22. Plaintiffs’ misgivings about that testimony are, at

most, “‘[h]azy allegations of administrative malfeasance,” which

“may sound incriminating” but are not the “concrete, specific

challenges to the sufficiency of [an agency’s] search [required

by the Court] in order to deny the agency summary judgment.’”

Am. Oversight v. U.S. Dep’t of Just.,

, 37

(D.D.C. 2019) (quoting Competitive Enter. Inst. v. U.S. Env’t

Prot. Agency,

(D.D.C. 2014)). Plaintiffs

therefore have failed to meet their burden to produce

“countervailing evidence” of DOD’s alleged bad faith in

conducting its FOIA search. Heartland All. for Hum. Needs & Hum.

Rts., 406 F. Supp. 3d at 110.

2. DOD’s Search Was Adequate Even Though It Could Not Locate Certain Records

Plaintiffs also object to Magistrate Judge Robinson’s

conclusion that DOD’s search was adequate because they claim

18 that she did not address four records DOD failed to locate. See

Pls.’ Objs., ECF No. 87 at 22-25. The first three records are a

series of orders issued at 8:02 P.M., 8:39 P.M., and 11:00 P.M.

on September 11, 2012. See id. at 22-23. To support their

argument that these records must exist, Plaintiffs cite

questions and notes from the Chief Investigative Counsel of the

House Select Committee on the Benghazi attack and testimony from

former Secretary Panetta before that Committee. This evidence is

not persuasive. The Chief Investigative Counsel discussed only

that the orders were conveyed and never indicated that the three

orders were written down. See Pls.’ Objs., ECF No. 87 at 23

n.29; Id. at 23 n.30. More pointedly, former Secretary Panetta

testified that these orders were “oral directions.” Panetta

Test., ECF No. 71-1 at 16. Plaintiffs’ repeated claims that

written records of these orders exist are “purely speculative”

and are insufficient to rebut DOD’s affidavit. SafeCard Servs.,

(citation omitted).

Plaintiffs also claim that DOD’s search was inadequate

because the agency did not produce a “PINNACLE OPREP-3 Report.”

See Pls.’ Objs., ECF No. 87 at 23-25. In their Complaint, they

explain that they requested these reports from the DIA in their

May 28, 2014 FOIA request. See Compl., ECF No. 1 ¶¶ 19, 98. DOD

explained that, although the DIA “conducted [a search] in

response to this request,” it was unable to locate the reports

19 because “the OPREP 3 report would come from [AFRICOM],” not the

DIA. Herrington Decl., ECF No. 68-4 ¶¶ 23-24. As Magistrate

Judge Robinson explained in her R. & R., Plaintiffs have not

provided any countervailing evidence to rebut this affidavit and

suggest that the DIA should have been able to locate the reports

among its records. See R. & R., ECF No. 83 at 12 n.6; cf. Reps.

Comm. for Freedom of Press v. Fed. Bureau of Investigation,

(D.C. Cir. 2017). Without any evidence to overcome

the presumption of good faith owed DOD, Plaintiffs’

“speculati[on] about the existence and discoverability of” the

PINNACLE OPREP-3 reports within the DIA fails. SafeCard Servs.,

(citation omitted).

Accordingly, the Court rejects Plaintiffs’ arguments;

ADOPTS this portion of the R. & R.; GRANTS Defendants’ Motion

for Summary Judgment regarding the adequacy of DOD’s search; and

DENIES Plaintiffs’ Cross-Motion for Summary Judgment on the

issue.

B. Magistrate Judge Robinson Correctly Concluded that DOD’s Maps are Protected from Disclosure Under Exemption 1

Plaintiffs next challenge Magistrate Judge Robinson’s

conclusion that DOD appropriately withheld in full 12 pages of

maps containing “the numbers and locations of ships, submarines,

response forces, and aircraft surrounding Benghazi, Libya”; the

“numbers of military personnel located in particular countries

20 during that time”; and “the transit time required for each

available asset to reach Benghazi.” R. & R., ECF No. 83 at 15-16

(quoting Malloy Decl., ECF No. 69-1 ¶ 9). For the reasons that

follow, the Court rejects Plaintiffs’ arguments and ADOPTS this

portion of the R. & R.

FOIA Exemption 1 protects from disclosure information that

is “specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national

defense or foreign policy” and is “in fact properly classified

pursuant to such Executive order.”

(b)(1). The

current executive order governing classification is Executive

Order 13,526, see Exec. Order 13,526,

, 707

(Dec. 29, 2009); which authorizes information to be classified

if certain conditions are met, id.; see also Lindsey v. Fed.

Bureau of Investigation,

, 11 (D.D.C. 2020).

The agency “bears the burden of proving the applicability

of claimed exemptions.” Am. C.L. Union v. U.S. Dep’t of Def.,

(D.C. Cir. 2011). In the national security

context, a court “must accord substantial weight to an agency’s

affidavit concerning the details of the classified status of the

disputed record.”

(quoting Wolf v. C.I.A.,

(D.C. Cir. 2007)). Courts “have consistently deferred to

executive affidavits predicting harm to the national security,

and have found it unwise to undertake searching judicial

21 review.” Ctr. for Nat. Sec. Studies v. DOJ,

(D.C. Cir. 2003) (collecting cases).

Plaintiffs do not dispute that DOD classified the maps

pursuant to Sections 1.4(a), 1.4(d), and 1.4(g) of Executive

Order 13,526. See generally Pls.’ Objs., ECF No. 87. They

instead object that disclosure is appropriate because the

information in DOD’s records “implicate[s] no national security

interest.” Id. at 22. To support this argument, Plaintiffs cite

an affidavit from retired Admiral Lyons. See Lyons Decl., ECF

No. 71-2. The Court will not consider this evidence, though. The

declarant “merely states his opinion, instead of any facts,

about current national security risks,” R. &. R., ECF No. 83 at

12 n.5 (citing Lyons Decl., ECF No. 71-2 ¶ 2 (“The sole purpose

of this affidavit is to set forth my opinion.”)); and affidavits

consisting of “conclusory opinions” are insufficient on motions

for summary judgment, Waldie v. Schlesinger,

(D.C. Cir. 1974).

However, even if it were appropriate for the Court to weigh

this evidence, Plaintiffs’ assertion would fail. Retired Admiral

Lyons’ “opinion about the nature of current or future military

assets is limited at best” because he is currently retired and

does not know DOD’s current national security concerns. R. & R.,

ECF No. 83 at 16-17. DOD, by contrast, has explained that

“[e]ven with the passage of time, how DOD’s forces are

22 positioned at a particular time could provide potentially

damaging and/or threatening insight to adversaries regarding

DoD’s interests, intent and potential operations.” Malloy Decl.,

ECF No. 69-1 ¶ 11. Magistrate Judge Robinson found “no reason to

doubt” DOD’s assessment, which must be given “‘substantial

weight,’” R. & R., ECF No. 83 at 16 (quoting Am. C.L. Union,

); and neither does the Court.

Plaintiffs also object to the R. & R. because the

information they requested is already publicly available through

a map published by the Congressional Research Service (“CRS”)

and another map they created. See Pls.’ Objs., ECF No. 87 at 19-

22. A FOIA requester may compel disclosure of classified

information otherwise protected pursuant to Exemption 1 if he

can establish the following: “(1) the information requested must

be as specific as the information previously released; (2) the

information requested must match the information previously

disclosed; and (3) the information requested must already have

been made public through an official and documented disclosure.”

Am. C.L. Union,

(citations omitted).

The maps Plaintiffs cite do not meet this standard because

“the information requested” does not “match the information

previously disclosed.”

.2 The CRS map shows only the

2 Plaintiffs also argue that disclosure is appropriate because “[t]he Congressional record on this issue is replete with 23 distances between Benghazi and other locations in the

Mediterranean region. See Clarke Decl., ECF No. 71-1 at 55.

Plaintiffs’ map provides only their estimates of travel times to

Benghazi from other locations in the Mediterranean region. See

id. at 118. Neither map details all of the information

Plaintiffs asked for in their FOIA requests, such as the

official positions of the military assets or the types of assets

at those locations. See Am. Compl., ECF No. 31 ¶¶ 30, 67, 75,

80, 95, 105. Controlling caselaw requires that the Court

“insist[] on exactitude.” Am. C.L. Union,

. Thus,

because there are substantive differences between the

information requested and the information disclosed,3 the Court

agrees with Magistrate Judge Robinson’s conclusion that

disclosure is not required.

The Court therefore ADOPTS this portion of the R. & R.;

GRANTS Defendants’ Motion for Summary Judgment regarding the

withholding of DOD’s maps pursuant to FOIA Exemption 1; and

DENIES Plaintiffs’ Cross-Motion for Summary Judgment on the

issue.

discussions of the assets, travel times, and available personnel and aircraft, and this information has been extensively reported by the media.” Pls.’ Objs., ECF No. 87 at 21. They provide no citations on this point, and so the Court rejects this argument. 3 Additionally, Plaintiffs’ map is not “an official and

documented disclosure.” Am. C.L. Union,

. 24 C. The CIA Appropriately Redacted Portions of the Inspector General’s Files

Plaintiffs next object to Magistrate Judge Robinson’s

determination that the CIA appropriately redacted records

related to a complaint sent to the CIA Inspector General David

Buckley. See R. & R., ECF No. 83 at 18. For the reasons below,

the Court ADOPTS the R. & R. as to the redaction of the CIA IG

files.

FOIA Exemption 3 allows an agency to withhold records that

are “specifically exempted from disclosure by statute” if the

statute “(A) requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue,

or (B) establishes particular criteria for withholding or refers

to particular types of matters to be withheld.”

(b)(3); see also C.I.A. v. Sims,

(1985).

The CIA has invoked two exempting statutes to protect portions

of the IG files from disclosure: Section 6 of the Central

Intelligence Agency Act of 1949 (the “CIA Act”) and Section

102A(i)(1) of the National Security Act of 1947. See R. & R.,

ECF No. 83 at 20; Halperin v. CIA,

(D.C. Cir.

1980) (explaining that both statutes are exempting statutes

under Exemption 3).

Plaintiffs object to Magistrate Judge Robinson’s

application of the CIA Act here. They argue that the CIA must

25 produce redacted portions of the records because “‘the specific

subject matter of an investigation by . . . the Office of

Inspector General of the Central Intelligence Agency,’ unlike

most other CIA operational records, is subject to the FOIA.”

Pls.’ Objs., ECF No. 87 at 26 (quoting

(c)(3)).

This argument is unconvincing because the CIA never invoked

Section 3141 to protect any part of the IG files from

disclosure. See Shiner Decl., ECF No. 68-5 ¶¶ 41, 43. Indeed,

the CIA clarified in its response to Plaintiffs’ Cross-Motion

for Summary Judgment that it has never relied on Section 3141 to

try to prevent disclosure of the IG files. See Shiner Suppl.

Decl., ECF No. 77-2 ¶¶ 4-5; Defs.’ Opp’n, ECF No. 91 at 19.

Plaintiffs also object in passing to the following: “that

‘the subject matter of these records is apparent from the face

of them,’ that disclosure of the specifics of the wrongdoing

alleged could lead to the disclosure of the whistleblower’s

identity, and that nondisclosure is justified as the information

‘relates to intelligence sources and methods.’” Pls.’ Objs., ECF

No. 87 at 29-30 (footnotes omitted). The Court need not consider

these objections as Plaintiffs have not made any argument or

cited any law to support these bare points. See Berry L. PLLC v.

Kraft Foods Grp., Inc., No. CV 13-0475 (RBW),

,

at *5 (D.D.C. Dec. 11, 2013) (“The Court need not consider

unsupported, cursory arguments.”).

26 Accordingly, the Court ADOPTS this portion of the R. & R.;

GRANTS Defendants’ Motion for Summary Judgment as to the

withholding of the CIA IG records; and DENIES Plaintiffs’ Cross-

Motion for Summary Judgment on the issue.

D. The Issue of the FBI’s Glomar Response is Moot

Magistrate Judge Robinson recommended denying Defendants’

Motion for Summary Judgment with respect to the FBI’s Glomar

response because the agency failed to provide a “logical” or

“plausible” explanation as to why “acknowledging the existence

of any 302 report would necessarily reveal the existence of

specific 302 reports.” R. & R., ECF No. 83 at 25-26; see Am.

C.L. Union v. C.I.A.,

(D.C. Cir. 2013)

(citations omitted). In lieu of raising objections to the R. &

R., Defendants filed a Notice stating that that the FBI “no

longer intends to maintain its prior Glomar assertion” and will

now “conduct a search for responsive records that would have

been covered by the Glomar assertion.” Defs.’ Notice Regarding

R. & R., ECF No. 86 at 1.

Because of the FBI’s changed position, the Court need not

evaluate the R. & R.’s recommendation as to the Glomar response.

See Edelman v. Sec. & Exch. Comm’n,

(D.D.C. 2016) (determining that the court need not resolve the

appropriateness of an agency’s Glomar response after the agency

withdrew its Glomar response and searched for responsive

27 records). Accordingly, the Court DENIES Defendants’ Motion for

Summary Judgment regarding the FBI’s Glomar response as moot.

E. Plaintiffs Have Not Met the Standard for Discovery

“It is well established that discovery is rare in FOIA

cases.” Cole v. Rochford,

(D.D.C. 2018).

Courts permit discovery in these cases “only in exceptional

circumstances,” id.: “when [the FOIA] plaintiff has made a

sufficient showing that the agency acted in bad faith, has

raised a sufficient question as to the agency’s good faith, or

when a factual dispute exists and the plaintiff has called the

affidavits submitted by the government into question,” Citizens

for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., No. CIV. 05-

2078(EGS),

, at *3 (D.D.C. June 1, 2006)

(citations omitted).

Plaintiffs object to Magistrate Judge Robinson’s

recommendation that the Court deny their Rule 56(d) request to

propound an interrogatory to DOD. See Pls.’ Objs., ECF No. 87 at

16, 31. Specifically, they claim that DOD made certain

misrepresentations to Congress and the public, which establish

the agency’s bad faith and therefore support their discovery

request.

; 31. However, as the Court explained supra,

Plaintiffs have not demonstrated that DOD acted in bad faith or

otherwise raised a question about DOD’s good faith in responding

to the FOIA requests at issue in this case. See Citizens for

28 Resp. & Ethics in Wash.,

, at *3. This failure is

fatal to their discovery request. See Am. Oversight v. U.S.

Dep’t of Just.,

, 29 (D.D.C. 2019); Cole, 285

F. Supp. at 76.

The Court therefore ADOPTS this portion of the R. & R. and

DENIES Plaintiffs’ Rule 56(d) request.

V. Conclusion

For the foregoing reasons, the Court ADOPTS Magistrate

Judge Robinson’s R. & R., ECF No. 83; GRANTS IN PART and DENIES

IN PART Defendants’ Motion for Summary Judgment, ECF No. 68;

GRANTS IN PART and DENIES IN PART Plaintiffs’ Cross-Motion for

Summary Judgment, ECF No. 71; and DENIES Plaintiffs’ Motion for

Leave to Propound Interrogatory to DOD, ECF No. 73.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 28, 2022

29