UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) INSTITUTE FOR POLICY STUDIES, ) ) Plaintiff, ) ) V. ) Civil Case No. 06-960 ) UNITED STATES CENTRAL ) INTELLIGENCE AGENCY, ) ) Defendant. ) ) MEMORANDUM OPINION By making most—but not all—government records publicly available, the Freedom of Information Act (FOIA) balances agency with accountability, caution with candor, efficiency with effectiveness, and secrecy with safety. In this case, national security proves a fickle fulcrum. The intelligence community routinely prepares periodic digests of disparate intelligence from around the world. Historically, when these dispatches fell within a FOJA request, the agency would only release the relevant portion, redacting the rest as nonresponsive. But the Court of Appeals ended that practice, holding that notwithstanding 5 U.S.C. § 552(b)’s nine exceptions, if a record contains information responsive to a FOIA request, the government must disclose the entire record. See Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review (AILA), 830 F.3d 667, 676-79 (D.C. Cir. 2016). Put differently, “a single record cannot be split into responsive and non-responsive bits.” Parker v. U.S. Dep’t of Justice, 278 F. Supp. 3d 446, 451 (D.D.C. 2017) (Boasberg, J.). To duck that decision in this case, the government fudges the definition of “record.” Institute for Policy Studies (IPS) seeks information about Pablo Escobar’s activities in Central and South America. Among the documents containing relevant material is a six-page-long daily intelligence report dated December 21, 1993 summarizing developments throughout Europe, South America, and the Middle East. The South America—portion discusses an attack on Escobar’s brother, so the government processed and released it in full. But the government did not even process the portions discussing Europe and the Middle East, construing them as separate “records” not responsive to IPS’s request. Both sides move for partial summary judgment on whether this document and others like it can be chopped into multiple records. Since their motions do not present a “genuine dispute as to any material fact,” summary judgment is proper. Fed. R. Civ. P. 56(c). Although the D.C. Circuit has never directly answered “the antecedent question of what constitutes a distinct ‘record’ for FOIA purposes,” AILA, 830 F.3d at 678, prior opinions offer helpful guidance. Generally, they note “[t]he term ‘agency records’ should not be manipulated to avoid the basic structure of the FOIA: records are presumptively disclosable unless the government can show that one of the enumerated. exemptions applies.” Bureau of Nat'l Affairs, Inc. v. U.S. Dep’t of Justice, 742 F.2d 1484, 1494 (D.C. Cir. 1984). And specifically, they suggest two reference points to assess proposed divisions: 1995 guidance from the Justice Department, and the agency’s prior practices. See AJLA, 830 F.3d at 687. Here, both suggest the government slices the definition of “record” too thinly. First, the Justice Department’s guidance. The Justice Department notes agencies should not divide documents “on less than a page-by-page basis”: “If any of the information on a page of the document falls within the subject matter of a FOIA request, then ...
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