Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 1 of 40 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, et al., Plaintiffs, Case No . 12-0245 (BAH) v. CENTRAL INTELLIGENCE AGENCY, et al., ) ) Defendants. ) --------------------------) DECLARATION OF JOHN F . HACKETT, CHIEF OF THE INFORMATION AND DATA MANAGEMENT GROUP, OFFICE OF THE CHIEF INFORMATION OFFICER, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Pursuant to 28 U.S.C. ? 1746, I, John F. Hackett, declare the following to be true and correct: 1. I am the Chief of the Informat ion and Data Management Group ("IDMG") for the Office of the Director of National Intelligence ( "ODNI 11 ) . I have held this position since April I held similar positions 2006. Prior to my arrival in the CDNI, in the National Counterterrorism Center and its predecessor, the Terrorist Threat Integration Center. In this capacity I am the final decision-making authority for the CDNI IDMG, which receives, processes, and responds to requests for ODNI records under the Freedom of Information Act (" FOIA" ), 5 U.S.C . ? 552 . 2. In addition, I have TOP SECRET original classification authority delegated to me by the Director of National 1 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 2 of 40 Intelligence ("DNI") pursuant to Section 1 . 3 of Executive Order 13 5 26. I am authorized, therefore, to conduct classification reviews and to make original classification and declassification decisions. 3. Through the exercise of my official duties, I have become familiar with this civil action and the underlying FOIA request. I make the fo llowing statements based upon my personal knowledge and information made available to me in my official capacity. 4. I am submitting this Declaration in support of ODNI's The purpose of motion for summary judgment in this proceeding. th i s Declaration is to address several i ssu es a lleged in Plaintiff's Comp l aint, and to explain and justify, to the extent possibl e on the public record, the ODNI's actions in responding to Plaintiff's request for information under the FOIA, 5 U . S.C. ?552. I. ODNI BACKGROUND 5. Congress created the position of the DNI in the Intelligence Reform and Terrorism Prevention Act of 2004, Pub . L . No . 108 - 458, 3698 - 99 (2004 ) ?? 1011 (a ) and 1097, 118 Stat. 3638, 3643-63, (amending Sections 102 through 104 of Title I of Su bject to the authority, the National Security Act of 1947). direction, and control of the President, the DNI serves as the 2 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 3 of 40 head of the u.s. Intelligence Community and as the principal advisor to the President and the National Security Council for intelligence matters related to the national security. U.S.C. ?? 403 (b ) (1), so (2). 6. The responsibilities and authorities of the DNI are set These forth in the National Security Act of 1947, as amended. responsibilities include ensuring that national intelligence is provided to the President, heads of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military commanders, and the Senate and House of Representatives and committees thereof . l(a) (1). so U . S . C . ?403- The DNI is charged with establishing the objectives of; determin i ng the requirements and priorities for; and managing and directing the tasking, collection, analysis, production, and dissemination of national intelligence by elements of the Intelligence Community. 1 (f) (1) (A) ( i) and so U.S.C. ?? 403- (ii). 7. In addition, the National Security Act of 1947, as amended, states that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." SO U.S.C. ?403-1(i) (1). Consistent with this responsibility, the DNI establishes and implements guidelines for the Intelligence Community for the classification of 3 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 4 of 40 information under applicable law, Executive Orders, or other Presidential Directives and for access to and dissemination of intelligence . 8. 50 U.S.C . ?403 - (il (21 (AI, (BI . Finally, the National Security Act of 1947, as amended, The created an Office of the Director of National Intelligence . function of this Office is to assist the DNI in carrying out the duties and responsibilities of the Director under the Act and other applicable provision of law, and to carry out such other duties as may be prescribed by the President or by law. II. PLAINTIFF'S FOIA REQUEST AND PROCEDURAL HI STORY 9. By letter dated 8 October 2009, the ODNI received a FOIA request from Plaintiff, National Security Counselors, for al l ODNI records pertaining to: a) Testimony by ODNI officials delivered verbally or submitted in writing to Congressional Committees or Subcommittees with oversight over national security activities (hereinafter 'national security oversight committees'), including but not limited to the House Permanent Select Committee on Intelligence ('HPSCI') and the Senate Select Committee on Intelligence ('SSCI')i Transcripts of hearings and meetings of any national security oversight committees, including but not limited to the HPSCI or SSCI, currently in the ODNI's possession; and Correspondence and emails between ODNI and the HPSCI or SSCI . For purposes of this subparagraph you may limit your searches to the Offices of the Director, Deputy Director, Congressional Affairs, General Counsel, Inspector General, and their predecessors. b) c) 4 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 5 of 40 Plaintiff also noted the following : "To assist you in processing this request, you may consider this request functionally identical to Request #OF-200B-00054 as amended by correspondence between the James Madison Project ('JMP') and the DONI, with the exception that this request also covers records created between that request and now." (A copy of Plaintiff's 8 Dctober 2009 request letter is attached hereto as Exhibit A) 10. Plaintiff's request was assigned case #OF - 2010 - 00012 and was placed in the DONI's normal processing queue, but 'piggybacked' to case #OF-2008 - 00054 (JMP's FDIA request). By letter dated 9 November 2009, the DONI acknowledged receipt of Plaintiff's request and confirmed the agreement reached per telephone conversation between the Plaintiff and my office that the DONI would only search for testimony that is not publicly available on the DONI's website, that Plaintiff agreed to withdraw part b) of their request, and that part c) would be held in abeyance on that portion dealing with emails. (A copy of DDNI's 9 November 2009 letter is attached hereto as Exhibit BI 11. The OONI previously received a FOIA request dated 9 April 2008 from JMp seeking essentially the same information as in Plaintiff's request herein . (A copy of JMP's 9 April 2008 The DDNI FOIA request letter is attached hereto as Exhibit C) 5 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 6 of 40 searched for responsive records to the JMP request and located material that was then coordinated with 14 government agencies on or about 22 July 2 009 . Due to the similarity between JMP's and Plaintiff's requests, the ODNI did not re -send responsive documents to those government agencies upon receipt of Plaintiff's FOIA request , but instead conducted new updated searches for records created between receipt of the JMP request and the present. 12. By letter dated 10 December 2009, Plaintiff requested an estimated date of completion for the processing of his FOIA request. (A copy of Plaintiff's 10 December 2 009 letter is attached hereto as Exhibit D) 13 . By email dated 16 September 2010, Plaintiff requested a status update, and again asked for an estimated date of completion, for the processing of his FOIA request. (A copy of Plaintiff's 16 September 2010 email is attached hereto as Exhibit E) On or about 12 October 2010 , Plaintiff requested a response to its 16 September 2010 email. 14. By email dated 30 March 2011, Plaintiff requested a My office status update for the processing of his FOIA request. replied to Plaintiff via email on 31 March 2011 and noted that the ODNI received responses from six agencies from the JMP 6 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 7 of 40 request. (A copy of Plaintiff's 30 March 2011 email and the OONI's 31 March 2011 email is attached h ereto as Exhibit F ) 15. By email dated 4 January 2012, Plaintiff requested an estimated date of completion for the processing of his FOIA request, as well as two other FOIA requests that he submitted. My office replied to Plaintiff via email on 5 January 2012 and noted that external coordinations were still pending and that no completion date could be provided . Plaintiff responded via email on 6 January 2012 seeking a more definitive answer, and my office replied via email on 9 January 2012 and noted that the OONI was continuing to work with other agencies and would provide Plaintiff with any updates and/or documents as soon as possible on this case, but did provide estimated dates of completion on the other two unconnected ForA requests that Plaintiff had inquired about. (A copy of Plaintiff's 4 January 2012 and 6 January 2012 emails and the ODNI's 5 January 2012 and 9 January 2012 emails are attached hereto as Exhibit G) 16. As of today, of the 14 government agencies that the OONI sent responsive documents to in coordination on the earlier 'piggybacked' JMP FOIA request, 12 have responded. Of the two remaining outstanding coordinations from the JMP request, those agencies have advised that they estimate they will respond to the OONI by mid-August 2012. My office will then require up to 7 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 8 of 40 eight weeks to finish processing the documents and provide an interim response to both requesters, JMP and National Security Counselors. With regard to National Security Counselors' request for an updated search, the ODNI is still conducting appropriate searches. While it is difficult to ascertain how many documents ( if any ) are located that would be responsive to Plaintiff's request at this time, if no additional exte rnal coordinations with other government agencies will be required, the ODNI estimates that it can provide Plaintiff with a final response within three months follow i ng our interim response . 17 . Although the ODNI does not have a specific policy, practice or standard operating procedure on how to provide FOIA requesters wi th estimated dates of completion, my office has strived in the past to follow the guidelines set forth in the FOIA, 5 U.S.C. ?SS2 (a) ( 7) (8). In fact, we have provided requesters with estimated dates of completion in the past, as evidenced by the 9 January 2012 email to Plaintiff ( see Exhibit G). In addition, I have advised my officers to follow the guidelines provided to government agencies as set forth by the Department of Justice, Office of Information Policy. (A copy of my 22 June 2012 memorandum is attached hereto as Exhibit H) 8 Case 1:12-cv-00245-BAH Document 14-6 Filed 07/09/12 Page 9 of 40 I certify under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief . of June, 2012. Office of the Director of National Intelligence Chief, Information and Data Management Group 9