Scudder v. Central Intelligence Agency (25 F. Supp. 3d 19, 2014)

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff Jeffrey Scudder seeks electronic copies of 419 Studies in Intelli gence (“SII”) articles from the defendant, the Central Intelligence Agency (“CIA”), pursuant to the Freedom of Information Act (“FOIA”),'5 U.S.C. § 552. See Compl. ¶ 5, ECF No. 1; see also Pl.’s Mem. Supp. Pl.’s Mot. Summ. J. on Electronic Prod, of Requested Records (“Pl.’s Mem.”) at 2, ECF No. 9. Pending before the Court are five motions, none of which address the ultimate issue of whether the documents requested by the plaintiff must be released under the FOIA: (1) the parties’ cross-motions for Summary Judgment on Electronic Production of Requested Records, Pl.’s Mot. Summ. J. on Electronic Prod, of Requested Records (“Pl.’s Mot.), ECF No. 9; Def.’s Cross Mot. Summ. J. on Electronic Prod, of Records (“Def.’s Cross-Mot.”), ECF No. 27; (2) the plaintiffs Motion for Discovery and/or an Evidentia-ry Hearing (“Pl.’s Discov. Mot.”), ECF No. 9; and (3) the parties’ cross-motions for partial summary judgment regarding the defendant’s fee waiver denial, Pi’s Mot. Part. Summ. J. Re: Def.’s Fee Waiver Denial (“Pl.’s Fee Waiver Mot.”), ECF No. 22; Def.’s Cross Mot. Part. Summ. J. Re: Fee Waiver Denial (“Def.’s Fee Waiver Cross-Mot.”), ECF No. 31. For the reasons set forth below, the four cross-motions for summary judgment are denied and the plaintiffs motion for discovery is granted.

1. BACKGROUND

The instant dispute centers on whether the defendant must provide records in an electronic format, as requested by the plaintiff, pursuant to 5 U.S.C. § 552(a)(3)(B). The defendant’s position is that it “does not have the capability or the capacity to readily produce records requested under the FOIA, the Privacy Act, or the Mandatory Declassification Review program in an unclassified electronic format.” Decl. of Martha T. Lutz, Chief, Litigation Support Unit, CIA (Jul. 17, 2013), (“1st Lutz Decl.”) ¶ 5, ECF No. 14-3. In essence, the defendant argues that it is de facto exempt from the requirements of 5 U.S.C. § 552(a)(3)(B) to provide records in the format sought by the requester if the requester seeks records electronically since, due to the defendant’s security procedures, the production of records in such a format “would be prohibitively time consuming and costly.” See id. Instead, the method the defendant proposes to fulfill the plaintiffs FOIA request is to release over 19,000 pages of paper printouts, even though this very method was singled out by Congress as an example of an archaic system out of step with the times nearly twenty years ago with passage of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (codified at 5 U.S.C. § 552 (Supp. II 1996) (“E-FOIA Amendments”). See 142 Cong. Rec. H10450 (Sept. 17, 1996) (statement of Rep. Tate) (“[Mjany agencies have not responded to the needs of a public that has already moved into the information age — continuing to focus on answering with volumes of paper rather than with CD-ROM’s [sic] or computer disks.”); see also 142 Cong. Rec. H10449 (daily ed. Sept, 17, 1996) (statement of Rep. Horn referring to Rep. Tate as “prime ahthor” of E-FOIA Amendments in House of Representatives).

The plaintiff, as a long time employee of the defendant with over twenty-three years of experience in the intelligence community, disputes the defendant’s assertions and indicates that he has substantial personal knowledge of the inner workings, procedures, and technical capabilities of the defendant. See Part I.A. infra. Based upon this purported knowledge, the plaintiff has challenged a myriad of factual allegations presented by the defendant and the defendant, in turn, has made efforts to discount, dismiss, or refute factual assertions made by the plaintiff. Out of this miasma of disputed facts, both parties, nevertheless, assert that summary judgment may be appropriately granted in either the plaintiff or the defendant’s favor. Set out below is a summary, first, of the plaintiffs attested experience and personal knowledge, which prompted him to make, the FOIA requests at issue in this litigation, and second, the procedural history of the instant matter.

A. The Plaintiffs Knowledge And Experience

The plaintiff does not detail the precise dates when he worked as an employee of the defendant, but indicates that after he began his career with the defendant at an indeterminate date in the past, he was selected for the defendant’s “Career Trainee program,” which the plaintiff describes as a one year program that serves as the defendant’s “version of Officer Candidate School.” Decl. of Jeffrey Scudder (Aug 25, 2013) (“2d Scudder Deck”) ¶ 8, ECF No. 21-1. As part of the program, the plaintiff attests that he “spent time with every office in the Directorate” of Administration, “followed by positions in the office of the Deputy Director of Administration, field assignments as a support officer, and finally as a management generalist officer in the Directorate [of Administration] supporting management as needed anywhere.” Id. The plaintiff notes that one of his “last assignments involved being asked by the Director of Support to sit on a working group to review efficiency in the Directorate [of Administration] and advise on how to develop, deploy, and utilize better business metrics to improve operations.” Id. The plaintiff asserts that, from 2004 through 2006, he worked as the “project manager for the FBI’s Investigative Data Warehouse,” which was “one of the largest and most successful of the Bureau’s post-9/11 efforts and was touted as one of its major successes.” See id. ¶¶ 4-5. In 2006, the plaintiff states that he returned to work for the defendant and “was immediately put in charge of the Architecture and System Engineering staff supporting the National Clandestine Service (“NCS”).” Id. ¶ 5. From 2007 through 2009, the plaintiff states that he worked “in Information Security for the Counter Intelligence Center ... [and] spent two years working in Information Management Systems (“IMS”)” for the defendant. Deck of Jeffrey Scudder (May 22, 2013) (“1st Scudder Deck”) ¶ 2, ECF No. 9-1. In 2012, the plaintiff “received permission from [the defendant] to engage in outside activities/employment and [he] was hired by the largest credit union in the world to manage security threats and remediation in their [sic] IT environment, which includes managing an $85 million dollar data warehouse project.” 2d Scud-der Deck ¶ 5.

The plaintiff claims that his work in the defendant’s IMS component gave him “a deep knowledge of the CIA’s Automated Declassification and Release Environment (“CADRE”) system, which is what the [defendant’s] FOIA office uses.” 1st Scudder Deck ¶ 2. In addition to being an end user of the CADRE system, the plaintiff “worked with the CACI system engineers who designed CADRE and [he] spent considerable time testing its capabilities.” Id. ¶ 3. While working at IMS, the plaintiff “received two Exceptional Performance Awards and a Meritorious Unit Citation.” Id.

In one of the multiple information technology positions he held with the defendant, the plaintiff worked for the defendant’s Historic Collections Division (“HCD”), a division of IMS, which “review[s] and manually redact[s] classified material for releases to the public.” Id. ¶ 7. It was while employed in this capacity that the plaintiff discovered “three document projects that had been ready for release to the public for a decade but for some reason had never been” released, specifically, SII articles. See id. The plaintiff states he began his own investigation as to why these articles, totaling over 10,000 pages of records, id. ¶ 9, were never released and eventually “learned an interesting story,” id. ¶ 7. The plaintiff alleges that an internal dispute between different departments within the defendant prevented the release of these documents to the National Archives and Records Administration (“NARA”). See id. ¶¶ 8-9.

According to the plaintiff, “many years” before he filed the FOIA requests in dispute, “the director of [the defendant’s] Center for the Study of Intelligence (“CSI”) forwarded a number of Studies in Intelligence articles to IMS for review pri- or to release.” Id. ¶ 8. In the face of apparent inaction, the plaintiff asserts that “the CSI Director approved the release of the articles to [NARA] on his own authority.” Id. The plaintiff alleges that subsequent to this decision, “IMS leadership ... went to CIO/Legal to ascertain whether the documents could be pulled back from NARA, which the [defendant] is authorized to do but has rarely[,] if ever[,] done.” Id. The plaintiff states that IMS’ purported rationale was that “the articles contained classified material but CIO/Legal only noted that the [-STJ] articles should contain a disclaimer stating that they were not government work product but personal opinion pieces.” Id. ¶ 9.

After receiving this legal advice, which apparently lent support to the decision of the CSI Director to release the SII articles to NARA, the plaintiff alleges that “an internal office ‘feud’ developed and IMS refused to release any more material from [SII] articles.” Id. The plaintiff was “taken aback by this [decision,] as the American taxpayers had already paid for all the work to scan, redact, and review over 10,000 pages of material and this was exactly the type of information HCD was suppose[d] to release to the public.” Id. In the course of his investigation, the plaintiff also alleges that he “discovered that ... CSI paid to have every published [SII] article re-scanned into PDF files that allowed word searching.” Id. ¶ 10. The plaintiff asserts that he attempted to convince the defendant “to input the PDF files into CADRE but [he] was told this was not possible.” Id. On his own initiative, and after working with the “IMS scanning team,” the plaintiff asserts that he was able “to demonstrate that PDF files can be automatically turned into TIFF .images and incorporated directly into CADRE.” Id. The plaintiffs “goal was to use the new PDF images the taxpayers already paid for to create and release the files to the public.” Id.

The plaintiffs efforts to convince IMS to release the documents failed, which led the plaintiff to try to “re-release the previously processed [SSI] articles using the new PDF versions.” Id. ¶ 11. The plaintiff states that he was prevented from doing this as well and was told by “one of the senior managers in IMS [to] ‘just make this whole thing go away.’ ” Id. Out of a belief that “IMS was violating both the principle and the letter of the law” the plaintiff “decided to force [the defendant’s] hand by submitting FOIA requests for these articles” after he “transferred to the' Counter Intelligence Center,” a transfer that appears to have occurred sometime in 2010. See id.

B. The Instant FOIA Requests

The plaintiff filed three undated FOIA requests with the defendant. See PL’s Mot. Ex. A (undated FOIA requests) at 2-4, ECF No. 9-2; see also Def.’s Fees Cross-Mot. Ex. A (same) at 2-4, ECF No. 30-3. Each request described the requested records by noting that “[i]n the past three years the Agency made PDF copies of all SII articles ever written. These are excellent quality copies and in electric [sic] PDF form can be searched.” PL’s Mot. Ex. A at 2-4. The plaintiffs request, however, only sought “[ejlectron-ie copies of [specified] Studies in Intelligence (SII) articles,” without expressly requesting — though implying — the desire to receive the requested articles in PDF form. Id. The three sets of requested documents differed in that one request sought “133 articles [that] have either been released in sanitized versions or are somewhere in the redaction and release process,” id. at 2; another sought “282 articles' [that] have never been released;” id. at 3; and the third sought “1,572 articles ... [that] have either been released to NARA, listed on CIA.gov, published in an unclassified edition of SII, or a combination of the three,” id. at 4. For each request, the plaintiff specified where on the defendant’s servers the documents could be located and offered' “to help in locating requested documents.” Id. at 2-4. In total, the plaintiffs requests sought 1,987 articles, which the defendant asserts total “nearly 19,000 pages.” See id.; 1st Lutz Decl. ¶ 13.

After receiving no response from the defendant by June, 2011, the plaintiff sent the defendant a request for a status report, PL’s Mot. Ex. B (correspondence dated June 27, 2011 from plaintiff to defendant) at 2-3, ECF No. 9-3, to which the defendant responded acknowledging receipt of the requests and notifying the plaintiff of the requests’ reference numbers, see PL’s Mot. Ex. C (correspondence dated July 27, 2011 from defendant to plaintiff) at 2, ECF No. 9-4.

The plaintiff, now represented by counsel, sought “an estimated date on which the [defendant] will complete action” on the plaintiffs request by letter and voice-mail in late 2011 and early 2012. See PL’s Mot. Ex. 2 (Correspondence dated January 25, 2012 from plaintiffs counsel to defendant) at 2, ECF No. 9-6. Since the plaintiff did not consider the defendant’s response satisfactory, see id. at 3, the plaintiff filed the instant suit on May 16, 2012.

Shortly after the instant suit was filed, the defendant notified the plaintiff by letter that “although [the plaintiff] requested these records electronically, we have determined that [the] records are not readily reproducible in such a format.” Pl.’s Mot. Ex. D (correspondence dated April 12, 2013 from defendant to plaintiffs counsel) at 3, ECF No. 9-5. The defendant offered no explanation for this determination. See id. Moreover, the defendant asserted that, even if it were possible to provide the requested records in electronic format, “due to the nature of. the duplication process, the above fees [for paper duplication] would still apply and additional costs for the CDs [on which the electronic files would be burned] would be assessed.” Id.

C. The Pending Motions

The pending motions refer to two distinct disputes, one of which has been substantially resolved by the parties. The first set of motions, which consists of the parties’ cross-motions for summary judgment and the plaintiffs motion for discovery, concerns the defendant’s assertion that the records the plaintiff requests “are not readily reproducible” in an electronic format and need not be produced in such a format under 5 U.S.C. § 552(a)(3)(B). ■See generally Pl.’s Mot; PL’s Discov. Mot.; Def.’s Cross-Mot. The reasons proffered by the defendant for determining that the requested records are not “readily reproducible” boil down to the assertion that the defendant has neither “the capability or the capacity to readily produce records” responsive to FOIA requests in any electronic format. 1st Lutz Decl. ¶ 5. The defendant’s two major objections, based on technical infeasibility and an undue burden on the defendant, are discussed in greater detail in Part III.C, infra.

The second set of motions, consisting of the parties’ partial cross-motions for summary judgment, refers to the plaintiffs application for a fee waiver and the defendant’s subsequent administrative denial of such a waiver. See generally PL’s Fees Mot.; Def.’s Fees Cross-Mot. As part of his motion, the plaintiff challenges the defendant’s assertion that, if no fee waiver were granted and the defendant were required to produce records in an electronic format to the plaintiff, the plaintiff would be required to pay more in fees for electronic copies of the records than for paper copies. See PL’s Mem. Supp. PL’s Fees Mot. (“PL’s Fees Mem.”) at 16-18 (emphasis supplied). Prior to the completion of briefing on the second set of motions, the plaintiff filed a notice with the Court stating that he had agreed to “forgo pursuit, with a narrow exception, of those articles” that were released by the defendant to NARA in the 1990s. See PL’s Not. Part. Withdrawal of Parties’ Cross-Summ. J. Mots, at 1-2, ECF No. 35. Specifically, the plaintiff indicated his withdrawal of his request for production of the articles sought under FOIA request F-2011-00450, filed in this matter as PL’s Mot. Ex. A at 4, with the exception of “less than six” articles the defendant is withholding. Id. at 2 n.l. With the significant narrowing of the documents sought by the plaintiff, the defendant agreed to accept a substantially smaller sum of money than originally quoted by the defendant in order “to commence processing/copying” the requested documents. Id. at 2. As the plaintiff clarified in response to an order from the Court, see Minute Order (Feb. 21, 2014), the plaintiffs withdrawal of the vast majority of FOIA Request No. F-2011-00450 reduced the number of articles in dispute to 419. PL’s Clarification Of His Not. Of Part. Withdrawal of Parties’ Cross-Summ. J. Mots. Pertaining to Def.’s Fee Waiver Denial (“PL’s Clarification”) at 2, ECF No. 39.

The remaining live issue from the parties’ second set of motions, therefore, is what cost, if any, the defendant may charge the plaintiff for any documents produced electronically. See id. The defendant claims that, in order to produce the records requested electronically, “Agency personnel would be required to ‘print a paper copy of the documents from [CADRE]” and then scan the records “into the Agency’s computer system in order to create an unclassified electronic version of the document.” Def.’s Surreply Pl.’s Reply Def.’s Opp’n Pl.’s Fees Mot. (“Def.’s Fees Surreply”) at 3-4, ECF No. 38. In other words, the defendant avers that if it were ordered to honor the plaintiffs request, it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media. See Part III.C, infra. As a result of this process, the defendant asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff. See Def.’s Fees Surreply at 3-4.

The plaintiff disputes the reasonableness of this fee, noting that neither the plaintiff nor the'plaintiffs counsel are aware “of even one other federal agency who takes the same position as [the defendant] with respect to the production of electronic records.” Pl.’s Reply Def.’s Opp’n Pl.’s Fees Mot. (“Pl.’s Fees Reply”) at 3, ECF No. 36. Indeed, the plaintiff asserts that other government agencies “simply charge[], if anything, a fee for the cost of the CD-ROM (usually $10 — $15) and never seek[] to apply the same reproduction costs as if it were printing paper copies.” Id. Finally, the plaintiff accuses the defendant of attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.” Id. at 4.

Resolution of this cost issue may be rendered moot, depending on whether the defendant prevails on the first set of cross-motions. Specifically, if the defendant is correct that the plaintiffs request for electronic production of the requested records need not be honored, then the second set of motions is moot because no electronic production of records would be required. Since the Court denies summary judgment to both parties on the first set . of cross-motions, the second set of cross-motions is denied without prejudice.

II. LEGAL STANDARD

A. FOIA

The FOIA requires federal agencies to release all non-exempt agency records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). It also requires agencies to “provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). This requirement is bolstered by the additional direction that “[e]ach agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this [subjsection.” Id. An agency’s “determination as to reproducibility ... must be accorded ‘substantial weight’ by thé reviewing court.” Sample v. U.S. Bureau of Prisons, 466 F.3d 1086, 1088 (D.C.Cir.2006) (quoting 5 U.S.C. § 552(a)(4)(B)).

Upon exhaustion of administrative remedies, a FOIA requester may file a civil action challenging an agency’s response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA 355 F.3d 675, 677 (D.C.Cir.2004). Once such an action is- filed, the agency generally has the burden of demonstrating that its response to the plaintiffs FOIA request was appropriate. See Wilbur, 355 F.3d at 678.

B. Summary Judgment

Although it is typically appropriate to resolve FOIA eases on summary judgment, see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011) (“the vast majority of FOIA cases can be resolved on summary judgment”), a party seeking summary judgment in a FOIA case still “must show, viewing the facts in the light most favorable to the [non-moving party] that there is no genuine issue of material fact,” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994); see also Moayedi v. U.S. Customs and Border Prot., 510 F.Supp.2d 73, 78 (D.D.C.2007). To defeat summary judgment, the non-moving party must present specific facts “ ‘such that a reasonable jury could return a verdict for the nonmoving party.’ ” Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23 (D.C.Cir.2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Fed.R.Civ.P. 56(c)(1). When, at the summary judgment stage, the parties present a genuine dispute about the facts, the court must draw all justifiable inferences in favor of the non-moving party and accept the non-moving party’s evidence as true. See Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. For a factual dispute to be “genuine,” the' nonmoving party must establish more than “[t]he mere existence of a sdntilla of evidence” in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505, “must do more than simply show that there is some metaphysical doubt as to the material facts,” Scott, 550 U.S. at 380, 127 S.Ct. 1769, and cannot rely on “mere allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993); accord Fed. R. Civ. P. 56(e). “[T]hese general standards under rule 56 apply with equal force in the FOIA context.” Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989).

The D.C. Circuit has made clear that “ ‘[s]ummary judgment may be granted on the basis of agency affidavits’” in FOIA cases, when those affidavits “ ‘contain reasonable specificity of detail rather than merely conclusory statements,’ ” and when “ ‘they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ ” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.Cir.2013) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C.Cir.2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994)).

III. DISCUSSION

The D.C. Circuit has observed that resolution of a FOIA case on summary judgment “is not always” proper. Brayton, 641 F.3d at 527. Indeed, the D.C. Circuit has, although rarely, found summary judgment precluded on the basis of competing affidavits in the FOIA context. See Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18-19 (D.C.Cir.1999); Wash. Post. Co., 865 F.2d at 325-26. Resolving issues of material fact in FOIA cases has, for example, required a bench trial to determine the propriety of exempting certain documents from release under the FOIA, see In Defense of Animals v. USDA, 656 F.Supp.2d 68, 70 (D.D.C.2009), or an evidentiary hearing, see Morrison-Knudsen Co. v. U.S. Dep’t of Army, 595 F.Supp. 352, 353 (D.D.C.1984). Consequently, the Court will first discuss what constitutes a “material fact in dispute” under Federal Rule of Civil Procedure 56 in the FOIA context. Next, the parties’ legal arguments as to the correct interpretation of 5 U.S.C. § 552(a)(3)(B) will be reviewed before the Court turns to a discussion of why the' disputes in this matter pertain to “material facts.” Finally, the potential mechanisms available to resolve the instant material factual disputes will be examined.

A. “Material Facts” In FOIA Cases

The cases in which courts have discussed disputes over factual information in FOIA cases that are sufficient under Rule 56 to prevent summary- judgment have primarily dealt with the propriety of claimed exemptions. For instance, in Washington Post Company, the D.C. Circuit was presented with a dispute over the correct application of the FOIA’s Exemption 4, which exempts from public disclosure “commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4); 865 F.2d at 324. The parties in that case provided competing affidavits about “whether public disclosure would cause individuals to so narrowly construe the requests for information” in the federal form at issue “that the government’s information-gathering ability would ■ be seriously impaired.” 865 F.2d at 325. The D.C. Circuit criticized the parties for offering affidavits that did little more than state in conclusory fashion that the party’s position was correct. See id. (“[T]he only pertinent change in the record ... is that [the government witness’] original conclusory affidavit has been joined by four equally conclusory affidavits. In effect, we asked the government [on a previous appeal in the same case] to change the station, and they responded by turning up the volume.” (internal quotation marks and citations omitted)); id. at 326 (describing plaintiffs affidavits as “similarly terse”). The D.C. Circuit found that “[w]hile the district court may of course ultimately determine that the [plaintiffs] authorities are less believable than the [defendants’], it is impermissible to conclude at this stage that no reasonable factfinder could be persuaded by the plaintiffs evidence.” Id. at 326 (emphasis in original). Consequently, the D,C. Circuit vacated the lower court’s summary judgment order and remanded the. case for further fact finding. Id. at 328.

In reaching this conclusion, the D.C. Circuit relied upon its previous finding in Sears, Roebuck and Co. v. General Services Admin., 553 F.2d 1378, 1382 (D.C.Cir.1977), which warned that “[w]here there is a conflict in the affidavits as to what adverse consequences will flow from the revelation of the facts contained in the documents sought to be disclosed, then it appears that there is indeed a conflict regarding very material facts which calls for some type of adversary procedure.” Wash Post. Co., 865 F.2d at 326 (quoting Sears, Roebuck and Co., 553 F.2d at 1382). The D.C. Circuit further observed that “ ‘factual’ issues that involve predictive facts almost álways require a court to survey the available evidence, to credit certain pieces of evidence above others, and to draw cumulative inferences until it reaches a judgmental conclusion.” Id. Finally, the court found that where “the judge must pick and choose between competing experts’ affidavits as to the effect of disclosure,” then “it is clear that there is a genuinely controverted factual issue in the case which is not ripe for disposition by summary judgment.” Id. (emphasis in original).

The D.C. Circuit revisited the issue of disputed facts regarding the application of Exemption 4 a decade after Washington Post Co. in Niagara Mohawk Power Corp. and, once again, found summary judgment improvidently granted by the district court in the face of contradictory affidavits, and remanded the case for further fact finding. 169 F.3d at 18, 21. The court described affidavits consisting of “speculative opinion” and a “terse and self-serving statement” as “not enough to establish the requisite risk of impairment” to label a record confidential under Exemption 4. Id. at 18. In Niagara, the D.C. Circuit singled out an affidavit from the plaintiff that “flatly dispute[d] the [government’s] assertions,” stating that the affidavit was enough to “put[ ] in dispute whether there is a likelihood of substantial competition” such that the application of Exemption 4 was warranted. Id. at 18-19. The D.C. Circuit held that “each legally sound theory offered by [the government was] plagued by factual disputes,” thus making “summary judgment ... improper.” Id. at 19; see also In Defense of Animals, 656 F.Supp.2d at 71 (finding after in camera review that “disputed material fact” existed “as to whether disclosure of document withheld under FOIA Exemption 4 would cause substantial competitive harm”).

Washington Post Co., Niagara Mohawk Power Corp., and In Defense of Animals involved disputes over the proper application of the FOIA’s Exemption 4, but certain rules may be gleaned as to what constitutes a “disputed material fact” more generally in the FOIA context. If the court is presented with affidavits from opposing parties that contradict each other “over the critical factual issue in th[e] case,” summary judgment is inappropriate. Wash Post Co., 865 F.2d at 325. Although “mere allegations” are insufficient to raise a genuine issue of material fact, Veitch, 471 F.3d at 134, where, as here, an affidavit is predicated on personal knowledge by the non-moving party that “flatly disputes the assertions” in the moving party’s affidavit can be sufficient to raise an issue of material fact. Niagara Mohawk Power Corp., 169 F.3d at 18. Finally, particularly when expert testimony would substantially aid the court in its decisionmaking, an adversary proceeding including such experts is appropriate. See In Defense of Animals, 656 F.Supp.2d at 71; see also Brayton, 641 F.3d at 527 (citing In Defense of Animals with approval for proposition that not all FOIA cases can be resolved without evidentiary findings).

The process of determining the applicability of Exemption 4 to withhold a responsive document shares one important similarity with determining whether an agency must disclose documents in an electronic format under 5 U.S.C. § 552(a)(3)(B): namely, both inquiries trigger a fact-based analysis. Exemption 4 exempts documents that contain “trade secrets and com-mereial or financial information obtained' from .a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Consequently, application of Exemption 4 often involves a determination as to whether the documents at issue contain “commercial or financial information” that is “privileged or confidential.” Id. Determining whether a document is “confidential,” while not requiring a court to-engage in “a sophisticated economic analysis,” typically turns on a fact-specific inquiry regarding whether the release of such information would “cause substantial harm to the competitive position of the person from whom the information was obtained.” Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290-91 (D.C.Cir.1983). Resolution of disputed facts underlying that analysis may be required, since “[cjonclusory and generalized allegations of substantial competitive harms, of course, are unacceptable and cannot support an agency’s decision to withhold requested documents.” Id. at 1291. Indeed, the contested nature of that very question led to the FOIA trial in In Defense of Animals. See 656 F.Supp.2d at 71. Thus, while FOIA cases generally turn oh application of law to undisputed material facts set out in agency affidavits, see Brayton, 641 F.3d at 527, courts may occasionally confront contested questions of fact that must be answered first. The meaning of 5 U.S.C. § 552(a)(3)(B) and its key phrase of “readily reproducible” sets the parameters for such a factual inquiry.

B. The Meaning Of “Readily Reproducible”

Relatively few cases discuss the application of the FOIA’s “readily reproducible” requirement, 5 U.S.C. § 552(a)(3)(B), which was enacted as part of the E-FOIA Amendments. See Sample, 466 F.3d at 1088. The leading case in this Circuit, Sample v. Bureau of Prisons, indicates that the central question to be determined in any dispute under this subsection is whether the documentó in question are “readily reproducible” in the format sought by the requester. See id.; see also TPS, Inc. v. U.S. Dep’t of Defense, 330 F.3d 1191, 1196 (9th Cir.2003) (holding “relevant inquiry is whether, in general, the format is one that is ‘readily reproducible’ by the agency”); Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Educ., 905 F.Supp.2d 161, 171 (D.D.C.2012) (same); Landmark Legal Found. v. EPA (“Landmark”), 272 F.Supp.2d 59, 63 (D.D.C.2003) (same); Carlson v. U.S. Postal Serv., No. C-02-5471, 2005 WL 756573, at *7 (N.D.Cal. Mar. 31, 2005) (same). As noted, similarly to the determination of whether the release of challenged documents will result in competitive harm under Exemption 4, whether a document is “réadily reproducible” in a specified format is a fact-based determination. See TPS, Inc., 330 F.3d at 1196; LaRoche v. SEC, 289 Fed.Appx. 231, 231 (9th Cir.2008) (affirming lower court’s grant of summary judgment using clearly erroneous standard since finding that records were “readily reproducible” was a “decision [that] turns mainly on its findings of fact” (quoting Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1078 (9th Cir.2004)).

The parties to the instant matter agree on this point regarding the fact-based nature of the “readily reproducible” inquiry, but simply discount or reject outright the evidence presented by the other side about whether this FOIA requirement is met in this case. See Pl.’s Mem. at 6 (stating determination as to whether “agency can ‘readily reproduce’ a record in [a] particular format ... is one of fact, not law”); id. at 7 (“The crucial question in this case is whether, as a factual matter, [the defendant] can readily reproduce responsive records in an electronic format.”); Def.’s Reply Pl.’s Opp’n Def.’s Cross-Mot (“Def.’s Reply”) at 6-7, ECF No. 29 (challenging factual bases of plaintiffs contentions and stating, on the basis of those factual challenges, plaintiffs declarations “should be accorded no weight ... and are insufficient to create a genuine issue of material fact”). TPS, Inc. is particularly instructive on how the parties’ factual dispute should be resolved, since that case, as here, involved a dispute over the burden the release of documents in a requested electronic format would place on the agency in question. See TPS, Inc., 330 F.3d at 1196.

In TPS, Inc., a government contractor “sought the transmission of two files in ‘zipped’ format” from a Defense Department unit. Id. at 1193. The agency refused, stating that, under agency regulations, “readily reproducible” formats were those provided under a “business as usual” approach, and the plaintiffs request did not fall into “business as usual.” Id. The agency supported its contention with a declaration from an agency analyst “claiming] that [the plaintiffs] request was ‘unique’ ” and, consequently, the requested documents were not “readily reproducible” in the course of normal business. Id.

The plaintiff in TPS, Inc., similarly to the plaintiff in the instant matter, was an industry insider, which had done substantial work with the agency in question and had previously received files from the agency in the requested “zipped” format, pursuant to a federal contract. See id. at 1194. The plaintiff submitted multiple affidavits to that effect, in direct conflict with those provided by the government. Id. at 1193-94. The Ninth Circuit found summary judgment was not appropriate because it was “impossible to resolve as a matter of law ... [w]hether the [agency] in fact does provide zipped files as a ‘normal business as usual approach.’ ” Id. at 1196. The TPS, Inc. court noted that the plaintiffs declarations “highlighted] the factual issue: whether, as [the plaintiffs] declarations indicate, zipped files are part of the [agency’s] usual mode of computerized transmission, or whether, as the government argues, zipped files are not produced in the normal course of business and are burdensome to create.” Id. The Ninth Circuit held that the plaintiffs “declaration was sufficient to raise a factual issue regarding the [agency’s] ability to transmit zipped files and its practice of regularly providing such files” and that this declaration “raised a factual question that cannot be resolved in summary judgment.” Id. at 1196-97.

The defendant’s attempt to distinguish TPS, Inc. is unavailing. Although the defendant is correct that the “business as usual” regulation at issue in TPS, Inc. is not applicable here, see Def.’s Mem. Supp. Cross-Mot. Summ. J. (“Def.’s Mem.”) at 16, ECF No. 14, the defendant’s point misses the principle thrust of the Ninth Circuit’s opinion. The TPS, Inc. court held that “[w]hen an agency already creates or converts documents in a certain format ... requiring that it provide documents in that format to others does not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant interference or burden.” 330 F.3d at 1195. The situation described by the TPS, Inc. court is precisely the situation described in the instant matter: the plaintiff alleges that the requested records already exist and are maintained in the exact format requested by the plaintiff and that the defendant has provided such records, in such a format, to others. See Part III.B.2 infra. Despite the defendant’s claims of incapability and incapacity, the defendant has not established through “specific, compelling evidence” that complying with the plaintiffs request would constitute “significant interference or burden,” injthe face of the plaintiffs contrary factual assertions, which are predicated on deep personal knowledge. TPS, Inc., 330 F.3d at 1195; see Part III.B.2, infra.

Before turning to the specific factual disputes raised by the parties, the Court first addresses the parties’ differing views of the legal requirement on the defendant to produce records in a requested format if those records are “reasonably reproducible” in that format, since the proper construction of the FOIA subsection at issue will inform the framing of any material factual disputes.

1. “Readily Reproducible” Is Not Synonymous With “Technically Feasible”

Relying heavily on Sample, the plaintiff contends that “ ‘readily reproducible’ simply refers to. an agency’s technical capability to create the records in a particular format.” Pl.’s Reply Def.’s Opp’n PL’s Mot. Summ. J. (“Pl.’s Reply”) at 3, ECF No. 21 (quoting Sample, 466 F.3d at 1088)). Based on this construction of the FOIA subsection at issue, the plaintiff argues that this factual question is “black and white.” Pl.’s Mem. at 12. The plaintiff, however, reads too much into a single line of the D.C. Circuit’s opinion.

In Sample, the D.C. Circuit rejected an agency argument “that providing the documents [requested] in paper format satisfied its obligations under FOIA because [the plaintiff, a prisoner who requested records in an electronic format], pursuant to [the defendant’s] security regulations, could not receive the records in electronic format.” 466 F.3d at 1088 (emphasis in original). There was no dispute in Sample as to whether the records were “readily reproducible” in the requested electronic format or whether production of the requested records electronically would be unduly burdensome, since the agency offered to produce them in electronic format to a non-incarcerated “designee.” Id. Rather, the issue was whether the unique characteristics of the requester somehow absolved the agency from complying with the FOIA requirement to produce the records electronically as requested. See id. In this context, the D.C. Circuit made the statement, on which the plaintiff relies, that “[ú]nder any reading of the statute, however, ‘readily reproducible’ simply refers to an agency’s technical capability to create the records in a particular format.” See PL’s Mem. at 5 (quoting Sample, 466 F.3d at 1088). The plaintiff omits the court’s critical gloss for the quoted statement that follows in the next sentence: “[n]o case construing the language focuses on the characteristics of the requester.” Sample, 466 F.3d at 1088. This next sentence demonstrates that the quoted line was not meant to provide a definition of “readily reproducible,” as the plaintiff would have it, but only to focus application of this term on the agency and not the requester. Id.

To the extent that the plaintiff argues that the only question at issue is whether it is “technically feasible” for the defendant to make the records available to the plaintiff in electronic format, the plaintiff is mistaken. Instead, the defendant is correct that “it cannot be that ‘readily reproducible’ simply means technical capability or feasibility.” Def.’s Mem. at 15.

A court must “give effect, if possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)). Moreover, it is a “ ‘normal rule of statutory construction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986)). The phrase “technically feasible” appears elsewhere in the FOIA. See 5 U.S.C. § 552(a)(2)(E) (“If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.”); 5 U.S.C. § 552(b) (“If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.”). In order to give “every clause and word of a statute” meaning, the phrase “readily reproducible” cannot share the same meaning as the different phrase “technically feasible.” See Union of Concerned Scientists v. U.S. Nuclear Regulatory Comm’n, 824 F.2d 108, 115 (D.C.Cir.1987) (holding that, where Congress has expressly referred to specific standards in other statutes “it knew how to say so” in the instant statute); see also Massachusetts v. EPA, 549 U.S. 497, 537, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (Roberts, C.J.dissenting) (noting that Congress’ express use of particular phrasing elsewhere in a statute indicates Congress’ intent to convey different intent when using different phrasing).

The plaintiff is partially correct that the common sense meaning of the word “reproducible,” standing alone, is synonymous with “technically feasible,” yet, just because an agency has the technical capability to reproduce responsive records in the requested format, the agency is not automatically obligated to do so under 5 U.S.C. § 552(a)(3)(B). That obligation turns on the meaning of the full term “readily reproducible.” The defendant argues, based on the definition of “readily” found in the Oxford English Dictionary, that Congress only intended agencies to have to comply with this subsection when doing so could be accomplished “without much difficulty” or “easily.” Def.’s Reply at 3. The defendant, too, is partially correct in that “readily” does imply that an agency is relieved of its obligation to fulfill a format request that is onerous, but the defendant ignores the second sentence in 5 U.S.C. § 552(a)(3)(B), which informs the meaning of “readily” in the first sentence of this subsection: “Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.” In order to “give effect,” as the Court must, to this second sentence, see Duncan, 533 U.S. at 174, 121 S.Ct. 2120, the statute must be read as requiring an agency to take affirmative steps toward maintaining records in “reproducible” formats such that they are “readily reproducible” when sought out by FOIA requesters. It is in disregarding the full meaning of this second sentence, when read in conjunction with the first, that the defendant errs.

2. Records Need Not Exist In The Exact Format Requested In Order To Be “Readily Reproducible”

The defendant’s definition of “readily reproducible” is based on the notion that in order to fulfill its statutory mandate under 5 U.S.C. § 552(a)(3)(B), an agency need only honor requester’s chosen formats when they are “choos[ing] among the formats in which the record already exists.” Def.’s Mem. at 9. This cramped reading of the FOIA’s legal requirement is not supported by its plain language, nor has it been interpreted as such. As noted, the subsection consists of two distinct sentences. The first sentence describes the reactive duty of the agency: “an agency shall provide the record [requested] in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. 552(a)(3)(B) (emphasis added). The Supreme Court has “recognized that the modifier ‘any’ can mean ‘different things depending upon the setting,’ ” Christopher v. SmithKline Beecham Corp., — U.S. -, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (quoting Nixon v. Missouri Muni. League, 541 U.S. 125, 132, 124 S.Ct. 1555, 158 L.Ed.2d 291 (2004)), but generally “has an ‘expansive meaning,’ ” that “can broaden to the maximum, but never change in the least, the clear meaning of the phrase selected by Congress here,” Freeman v. Quicken Loans, Inc., — U.S. -, 132 S.Ct. 2034, 182 L.Ed.2d 955 (2012) (internal quotation marks omitted). The use of the word “any” to modify the form or format requested must therefore be given an “expansive” reading, subject only to whatever limitation Congress imposed in the statute. Here, agencies “shall” provide responsive records in requested forms or formats, so long as the agency is able to readily reproduce the responsive record in the form or format requested. 5 U.S.C. § 552(a)(3)(B). Contrary to the defendant’s construction of this requirement, this requirement applies without regard to the form or format in which the agency maintains the record.

The second sentence amplifies the importance of the requirement set out in the first sentence and imposes an over-arching obligation on federal agencies to be proactive in satisfying format requests: “Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.” Id. Thus, the second sentence requires an agency to take affirmative steps to maintain its records in a form that would be readily reproducible in response to FOIA requests for “any form or format.” The defendant’s position that this subsection limits an agency’s obligation to honor format requests to only existing formats ignores the plain statutory text in the subsection’s first sentence as well as the proactive admonition in the subsection’s second sentence.

The flaw in the defendant’s reading of 5 U.S.C. § 552(a)(3)(B) is further demonstrated by the absurdity of its result. For example, if an agency kept non-exempt email communications only in electronic format, and a requester sought those records in paper form, the agency would, according to the defendant’s logic, be permitted to deny production in paper form merely because the records were not stored on pa-pér and its obligation to provide records in the requested format extended only to records already existing in that format. That is not the law. If the records are “readily reproducible” in the requested format, the agency must honor the request.

In positing its interpretation of the 5 U.S.C. § 552(a)(3)(B) requirement, the defendant relies on a quotation from a Department of Justice (“DOJ”) “FOIA Update” from 1997 that clearly is not binding on this Court and is twisted out of context. See Def.’s Mem. at 9. Specifically, the defendant quotes from a 1997 question and answer document issued by the DOJ stating that “a FOIA requester may choose among existing forms or formats of a record, so long as the record is ‘readily reproducible’ in the chosen form.” Def.’s Mem. at 9 (quoting U.S. Dep’t of Justice, FOIA Update, Vol. XVIII, No. 1 (1997) available at www.justice.gov/oip/foia_updates/V ol_ SVIII_l/page3.htm (“1997 FOIA Update”)). The defendant infers from this language that a requester may only choose from among existing forms or formats in which the agency maintains the record. The defendant omits critical context for the quoted DOJ guidance since’the quotation is extracted from an “answer” to a question that is limited in scope to a request for existing formats. 1997 FOIA Update (posing question “If. an agency maintains a record in more than one form or format, can a FOIA requester now choose the one in which it- will be disclosed?”). Contrary to the defendant’s interpretation, the DOJ guidance goes on to make clear that an agency is obliged “to disclose a record in a new form or format” when asked to do so by a FOIA requester “if the record is ‘readily reproducible’ in that form or format with ‘reasonable efforts.’ ” Id. (citing, inter alia, H.R.Rep. No. 104-795, at 18 (1996) (“House Report”) (“Agencies must make a ‘reasonable effort’ to comply with requests to furnish records in other formats.”)).

In addition to being erroneous, the defendant’s argument that format requests need only be honored when responsive records are maintained in the requested format is a non-sequitur because the defendant does not dispute here that the responsive records are maintained in the electronic format requested by the plaintiff. See Pl.’s Ex. A at 2-4; 1st Scudder Decl. ¶ 10 (alleging that SII articles subject to instant FOIA requests already exist in electronic PDF form). Thus, even under the defendant’s erroneous interpretation of 5 U.S.C. § 552(a)(3)(B), it would not be relieved of the obligation to honor the electronic format requested. Indeed, another part of the same “answer” from the 1997 FOIA Update cited by the defendant provides clear DOJ guidance on an agency’s obligations in this exact circumstance. The DOJ’s answer to the question: “If an,agency maintains a record in more than one form or format, can a FOIA requester now choose the one in which it will be disclosed?” is clear, stating “Yes, with only limited exception.” 1997 FOIA Update. The guidance goes on to state that “[i]n almost all cases, an agency will be able to readily reproduce any existing form or format of a record for which a requester expresses a preference.” Id. (citing 1996 FOIA Update). The DOJ reiterated this guidance in 1998, noting that “whenever an agency already maintains a record in more than one form or format, the requester can choose the one in which it will be disclosed” and calling any exception to this rule a “highly unusual case.” U.S. Dep’t of Justice, FOIA Update, Vol. XIX, No. 1 (1998), available at www. justice.gov/oip/Ma_updates/VolJXDUl/ xixpage4.htm (“1998 FOIA Update”). Notably, the DOJ’s guidance is entirely consistent with reading the two sentences of 5 U.S.C. § 552(a)(3)(B) in conjunction, with the “reasonable efforts” standard informing the definition of “readily reproducible.”

The defendant’s characterization of its own blanket inability to “readily reproduce records requested under the FOIA ... in an unclassified electronic format” is difficult to reconcile with the DOJ’s repeated and express guidance that, when an agency maintains a record in a particular format, it will be “a highly unusual case” or “only limited exception” when the record cannot be readily reproduced by the agency in that format. See 1997 and 1998 FOIA Updates. Insofar as the defendant has self-assessed its own capabilities and capacity, every request to the defendant for electronic records apparently falls within the DOJ’s exception for the “highly unusual case” where the record cannot be readily reproduced, despite the clear expectation that agencies generally would have no such trouble complying with electronic format requests for records already maintained in the electronic format requested.

In addition to DOJ guidance documents, the defendant relies on two district court cases, Landmark, 272 F.Supp.2d at 63, and Carlson, 2005 WL 756573, at *7, for the proposition that it need not produce the requested records in electronic format. See Def.’s Mem. at 9-10. These two cases do not support the weight of the defendant’s argument. In Landmark, the plaintiff sought copies of agency e-mails that no longer existed in electronic format, but paper copies were maintained in decentralized folders “filed according to rele-' vanee.” See Landmark, 272 F.Supp.2d at 63. The Landmark court held that “FOIA does not require an agency to reorganize its files in anticipation of or in response to a FOIA request,” and that failure to maintain an electronic database of the requested records was not a violation of the “readily reproducible” subsection of the FOIA, 5 U.S.C. § 552(a)(3)(B). Id. The Landmark court’s discussion of whether the agency was required to maintain records in electronic format arose in the context of the plaintiffs challenge to the timeliness of the agency’s search and production. Id. There is no indication that the plaintiff in that case requested production of records in electronic format and, consequently, the Landmark court never addressed the agency’s obligation to honor format requests. Id.

By contrast to the situation in Landmark, the plaintiff here has requested release of responsive records in electronic format and has provided reasonable evidence, based on his purported personal experience and observations, that the documents requested do exist in the format requested. Indeed, in his FOIA requests, the plaintiff even alerted the defendant’s FOIA staff as to where within the defendant’s computer systems the electronically stored documents are located. See Pl.’s Ex. A at 2-4. The plaintiff here is not asking the defendant to “reorganize its files” but instead to provide an electronic copy of the requested records in a form already maintained by the defendant. See id. Thus, Landmark cuts against the defendant and lends support to the plaintiffs argument that the requested articles are readily reproducible in electronic format, since they currently exist and are stored in that format. See Landmark, 272 F.Supp.2d at 63.

Carlson addressed whether an agency had to honor a plaintiffs request for aggregate data in an electronic format when the individual pieces of data to be aggregated were already publicly accessible. See 2005 WL 756573, at *7. The issue of whether the documents were “readily reproducible” was addressed only obliquely, since the defendant was withholding the data requested under the so-called “High 2 exemption,” id., which has since been rejected by the Supreme Court. See Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). The Carlson court ordered the agency to produce the requested records in aggregate form since the records existed electronically and could be compiled in the aggregate. See 2005 WL 756573, at *7. Consequently, Carlson, like Landmark, undercuts the de-. fendant’s position since the Carlson court found that if an agency maintained records in an electronic form, even if such records were only for internal agency use, they must be produced in an electronic form pursuant to a FOIA request. See id.

In sum, the defendant is incorrect that an agency need only produce records in a particular format requested if the agency already keeps its records in that format. The plain language of 5 U.S.C § 552(a)(3)(B), as confirmed by the DOJ’s guidance to agencies regarding compliance with this subsection, requires agencies to provide records in requested formats, which are “readily reproducible” for the agency, whether or not the record is maintained by the agency in that format. The DOJ opined, as common sense dictates, that when the requested format is an existing format for responsive records within the agency, it would be a “highly unusual” case where the records would not thereby be “readily reproducible.” When the requester seeks production of responsive records in a format that is different from that in which the records are maintained, the “readily reproducible” requirement still applies and is informed by the second sentence of the subsection, directing the agency to engage in “reasonable efforts” to comply.

In sum, “readily reproducible” is not, as the plaintiff contends, synonymous with “technical feasible.” The Court may consider the burden on the defendant in determining whether the documents at issue are “readily reproducible” in the format the plaintiff requests. Nevertheless, the defendant is incorrect when it asserts that the Court must acquiesce to the defendant’s determination as to what is “readily reproducible.” Rather, the Court must consider the evidence presented by the parties and determine if, read in light of the opposing party’s evidence, either party is entitled to summary judgment because there are no material facts in dispute.

C. Material Facts Disputed By The Parties

The evidence submitted with the cross-motions for summary judgment consists of affidavits and exhibits from each party. In multiple instances, as detailed below, the affidavits from the parties directly contradict each other. The defendant asserts, relying upon a different subsection of the FOIA, 5 U.S.C. § 552(a)(4)(B), that its declarations “are accorded a presumption of good faith and, in this 'instance, are entitled to ‘substantial weight.’ ” Def.’s Reply at 10. The defendant also argues that the plaintiffs declarations should be “accorded no weight,” and argues that the “plaintiffs declarations are based on conjecture, hearsay and uninformed opinion.” Id. Before turning to an examination of the substantial factual issues in this case, it is first necessary to address the subsection relied upon by the defendant to argue that the plaintiffs evidence should be discounted, if not rejected entirely.

1. The Plaintiff Has Submitted Sufficient Evidence To Overcome The “Substantial Weight” Accorded To The Defendant’s Affidavits

While “the ‘readily reproducible’ analysis involves the significance of the burden the requested format would impose on the agency,” Def.’s Mem. at 10, the defendant overreaches in construing 5 U.S.C. § 552(a)(4)(B) to dictate that an agency’s evaluation of that burden automatically trumps contrary credible evidence, see Def.’s Reply at 10. The subsection at issue, 5 U.S.C. § 552(a)(4)(B), requires that “[i]n addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to ... reproducibility under paragraph (3)(B).” This subsection plainly instructs that substantial deference is due an agency’s “reproducibility” determination, but such deference does not amount to a blanket exemption from judicial review of the agency’s justification for declining to comply with a specific format request or failing to maintain records in readily reproducible formats, as required under the first and second sentences of 5 U.S.C. § 552(a)(3)(B). The House