Jens Porup v. CIA ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2021 Decided May 21, 2021
No. 20-5144
JENS PORUP,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00072)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Joshua K. Handell, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jeffrey Bossert Clark, Acting Assistant Attorney General, and
H. Thomas Byron III, Attorney.
Before: HENDERSON and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 2015, Appellant Jens
Porup submitted a Freedom of Information Act (“FOIA”)
request to Appellee Central Intelligence Agency (the “Agency”
or “CIA”) seeking “any [and] all documents relating to CIA use
of poison for covert assassination.” Compl. ¶ 17, Joint
Appendix (“J.A.”) 14. On May 21, 2015, the CIA refused to
process Porup’s request because Executive Order 12,333
makes it unlawful for federal employees to engage in
assassination or conspiracy to assassinate. See 46 Fed. Reg.
59,941, 59,952 (Dec. 4, 1981). In other words, the CIA initially
refused to process the disputed FOIA request because it
pertained to matters that were arguably beyond the scope of the
Agency’s primary mission. In January 2017, after Porup and
the CIA were unable to resolve their differences, Porup filed a
complaint in the District Court alleging that the Agency had
failed to comply with FOIA in responding to his specific
request. He also alleged that the Agency had a “pattern or
practice” of violating FOIA by categorically refusing to
process requests seeking information related to conduct in
which the CIA believes it cannot lawfully engage.
In the months after Porup submitted his FOIA request, the
CIA adopted a revised approach to process requests of the sort
submitted by Porup. According to the CIA, under this new
policy, Agency personnel are prohibited from “declin[ing] to
process [FOIA] requests solely because they pertain to
activities or issues that are beyond the scope of the Agency’s
primary mission.” Decl. of Antoinette B. Shiner, Information
Review Officer for the Litigation Information Review Office,
CIA (hereinafter “Declaration” or “Decl.”) ¶ 18, J.A. 47.
Agency personnel are now “required to engage in a context
dependent inquiry as to whether a search may be possible, and
3
whether the Agency’s records repositories are likely to contain
responsive materials.” Id. After adopting this new policy, the
CIA identified and released a number of documents that were
responsive to Porup’s FOIA request. The Agency then moved
for summary judgment, arguing, among other things, that it had
completed its response to Porup’s request, and that the
Agency’s implementation of its new policy had mooted
Porup’s pattern or practice claim.
In opposition, Porup argued that the Agency had not
carried its burden on mootness, had not demonstrated the
sufficiency of its searches for responsive documents, and that
its withholdings and redactions were insufficiently justified.
The District Court rejected Porup’s arguments and granted the
Agency’s motion for summary judgment. Porup now appeals
the District Court’s judgment on several grounds. We affirm
the District Court.
The Agency has adopted a new policy that adequately
addresses any pattern or practice it had of violating FOIA in the
manner alleged by Porup, rendering that cause of action moot.
In addition, we find no merit in any of Porup’s specific
challenges to the Agency’s search methodology, withholdings,
or redactions. Finally, although the District Court failed to
make any findings of segregability regarding the information
to be withheld, we exercise our discretion to do so. On the
record before us, we agree with the Agency that Porup has not
“[o]vercome CIA’s [u]nrebutted [a]ttestation” that it disclosed
all reasonably segregable non-exempt material. Appellee’s
Response Br. 46.
I. BACKGROUND
On May 1, 2015, Porup submitted a FOIA request to the
Agency for “any [and] all documents relating to CIA use of
poison for covert assassination.” Compl. ¶ 17, J.A. 14; accord
4
Def.’s Statement of Undisputed Material Facts in Supp. of Mot.
for Summ. J. (hereinafter “Summ J. Statement”), Ex. 1 at 2,
J.A. 23. On May 21, 2015, the Agency responded that it had
declined to process Porup’s request, because an executive order
has made it unlawful for federal employees to engage in
assassination or conspiracy to assassinate. See Exec. Order No.
12,333, 46 Fed. Reg. 59,941, 59,952 (Dec. 4, 1981). Similar
orders date back to the 1970s. See Exec. Order No. 12,036, 43
Fed. Reg. 3674, 3687 (Jan. 24, 1978); Exec. Order No. 11,905,
41 Fed. Reg. 7703, 7733 (Feb. 18, 1976).
Approximately two weeks later, Porup replied to the
Agency, observing that the U.S. Senate Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities, also known as the “Church Committee,” had
published a 1975 interim report concluding that the Agency
played a role in assassination plots. See CHURCH COMMITTEE,
ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN
LEADERS, S. REP. NO. 94-465, at 4-6 (1975) (describing plots
against Patrice Lumumba and other foreign leaders). Porup
asserted that he was “appealing th[e Agency’s] response
because [its] reply contradict[ed] material that is already in the
public record.” Summ. J. Statement, Ex. 1 at 5, J.A. 26. Porup
also clarified that his request “refer[red] to the CIA from its
inception to [the] present day.” Id. On September 17, 2015, the
Agency stated that it had not extended Porup administrative
appeal rights and declined to process his appeal.
In November 2015, Porup filed a near-duplicate FOIA
request. The Agency’s “final response” to that second request
noted its denial of Porup’s previous request. Summ. J.
Statement, Ex. 1 at 12, J.A. 33. However, the CIA response did
not indicate whether the Agency intended to pursue any other
action. Over the ensuing year, Porup submitted several status
5
update requests for his most recent FOIA request, to which the
Agency did not respond.
In 2017, Porup filed a complaint in the District Court
alleging that the Agency had unlawfully declined to process his
FOIA requests. Porup also alleged that the Agency had “a
pattern or practice” of violating FOIA by “categorically
refusing to process FOIA requests that seek information
regarding conduct in which the CIA states it does not and
cannot engage.” Compl. ¶ 26, J.A. 16.
As indicated above, in the months after Porup submitted
his second FOIA request, the CIA adopted a new policy for
processing requests of the sort submitted by Porup. According
to the CIA, under this new approach, Agency personnel were
instructed not to refuse FOIA requests solely because the
subject of the information sought concerns matters that are
beyond the scope of the Agency’s primary mission. This new
policy is amplified below.
From May 2017 through April 2018, the Agency applied
its new policy and produced documents that were responsive to
Porup’s FOIA request. In total, the Agency located 39
responsive documents in its possession. The Agency produced
seven documents either redacted or in full, withheld ten in full
under a combination of three exemptions to FOIA disclosure,
and discovered that the other 22 documents were set to be
released publicly pursuant to the President John F. Kennedy
Assassination Records Collection Act of 1992, Pub. L. No.
102-526, 106 Stat. 3443 (codified at 44 U.S.C. § 2107 note).
These 22 documents were later posted on the National
Archives and Records Administration’s website.
On April 12, 2019, the Agency moved for summary
judgment. Attached to the Agency’s motion were, among other
things, the Declaration from Antoinette B. Shiner and a
6
Vaughn Index describing the responsive documents and
explaining, where necessary, why documents were either
redacted or withheld in full.
The Declaration first noted that Shiner was a “senior CIA
official.” Decl. ¶ 4, J.A. 40. It then described the Agency’s
search for responsive records:
[P]ersonnel with expertise in conducting Agency
records searches consulted with Agency officials
knowledgeable about the subject matter of the
requests in order to ascertain the potential universe of
responsive records and to identify all of the specific
offices and individuals who would likely possess
those documents if they were to exist. Based on those
consultations, CIA personnel determined that [two
offices within the Agency] would be the offices . . .
most likely [to] possess [responsive] records . . . .
For each of the relevant electronic records systems
searched, search personnel used those search terms
most reasonably likely to return responsive records
including: poison, covert, assassination, “Church
Committee,” “Rockefeller Commission,” “family
jewels,” “ZR/RIFLE,” “AMLASH,” and Mongoose.
Some of these terms were identified by subject matter
experts as referring to operations or Congressional
investigations . . . likely to be responsive to the
request. . . .
Searches were conducted in all locations in which it is
reasonably likely that responsive records would reside
and used search terms and methods calculated to
locate those documents. Searches were reasonably
calculated to uncover all records potentially
7
responsive to Plaintiff’s FOIA request, and all files
likely to contain responsive material were searched.
Decl. ¶¶ 10, 15-16, J.A. 42, 44-45.
Regarding the Agency’s pattern and practice in handling
FOIA requests of the sort submitted by Porup, the Declaration
stated:
It is my understanding that the CIA maintains a
practice of declining to process requests for records
that are well beyond the Agency’s statutory and
historical purview, such that it is reasonable to
determine that, based on knowledge of the Agency’s
record systems, the Agency does not maintain records
responsive to the request, and therefore cannot
reasonably conduct a search for the requested
records. . . . I understand that those processing
determinations are made on a case-by-case basis,
particular to the wording and subject matter of the
request as compared against the CIA’s statutory and
historical purview, and the structure of the Agency's
records systems. . . .
[I]n the months following CIA’s issuance of its initial
response in this case, additional internal guidance was
provided to the office responsible for processing such
requests designed to clarify the circumstances under
which it may be reasonable to decline to search for
documents based on the nature and wording of the
request . . . . Specifically, [the group responsible] has
been generally instructed that the Agency should not
decline to process requests solely because they pertain
to activities or issues that are beyond the scope of the
Agency’s primary mission. Rather, processors are
required to engage in a context dependent inquiry as
8
to whether a search may be possible, and whether the
Agency’s records repositories are likely to contain
responsive materials. Had this additional guidance
been available at the time of [Porup’s] initial request,
and [had] the processors . . . engaged in the
appropriate, case specific analysis described above,
the Agency’s initial response [to Porup] would have
been different. Moreover, the guidance provided
mandates that this fact specific analysis will be
applied to requests moving forward, and pursuant to
the guidance described above, Agency personnel
should not decline to process requests solely because
the matters at issue are beyond the scope of the
Agency’s primary mission.
Decl. ¶¶ 17-18, J.A. 45-47.
The Declaration also explained why responsive documents
related to Porup’s FOIA request had been withheld or redacted
under several exemptions to FOIA’s disclosure requirements,
including a statutory provision requiring the Agency to redact
or withhold documents to protect intelligence sources and
methods. Finally, the Declaration stated that “[i]n assessing the
responsive documents, the CIA conducted a page-by-page and
line-by-line review, and released all reasonably segregable,
non-exempt information.” Decl. ¶ 38, J.A. 60. Ms. Shiner
further attested that she had “determined that no additional
information may be released without divulging information
that . . . falls within the scope of one or more FOIA
exemptions.” Id.Porup opposed the motion for summary judgment on
several grounds. He also filed a Notice of New Evidence,
containing two FOIA response letters from the Agency
authored in December 2017 and August 2018. Both response
9
letters, addressed to individuals other than Porup, declined to
process FOIA requests because they ostensibly concerned
domestic matters and “the mission of the Central Intelligence
Agency is primarily concerned with foreign intelligence – not
domestic – matters.” Pl.’s Notice of New Evid., Ex. F. at 1, J.A.
195; id. at 2, J.A. 196.
On September 20, 2019, the Agency filed a supplemental
memorandum in support of its summary judgment motion,
attaching a supplemental declaration from Shiner (the
“Supplemental Declaration” and, collectively with the
Declaration, the “Shiner Declarations”). The Supplemental
Declaration noted that the Agency's operational files are
generally exempted from publication under FOIA. See 50
U.S.C. § 3141(a). However, there is a narrow exception to such
nondisclosure for any operational files “concerning,” among
other things, “the specific subject matter of an investigation by
the congressional intelligence committees . . . .” Id.§ 3141(c)(3). Shiner thus explained that the Agency had – after
Porup filed his opposition to its summary judgment motion –
searched its operational files for responsive documents created
on or before December 31, 1980, or roughly five years after the
Church Committee had issued its interim report on alleged
assassination plots. The Supplemental Declaration noted that
those searches sought “to capture potentially responsive
materials that would have existed at the time of the
Committee’s review, as well as any documents created in an
attempt to address the concerns raised by the [interim]
[r]eport.” Def.’s Suppl. Br. in Supp. of Mot. for Summ. J., Ex.
A. (hereinafter “Suppl. Decl.”) ¶ 4, J.A. 220. Shiner also
explained that the searches had used several search terms,
including many of those listed in her original declaration, as
well as “Boolean connectors.” See id. ¶¶ 5-6, J.A. 220-21.
“[A]fter a careful, line-by-line review of each document”
10
returned by the searches, however, the Agency had concluded
that none contained responsive material. Id. ¶ 6, J.A. 221.
On March 16, 2020, the District Court granted the
Agency’s motion for summary judgment and dismissed the
case. First, the District Court held, given the Declaration’s
sworn assertions as to the Agency’s revised internal
“guidance,” that Porup’s pattern and practice claim was moot.
See Porup v. CIA, No. 17-cv-72 (CRC), 2020 WL 1244928, at
*2-*4 (D.D.C. Mar. 16, 2020). Next, the District Court
“conclude[d] that there [wa]s no genuine dispute of material
fact as to whether the [A]gency’s search terms were adequate,”
as the Shiner Declarations “provided a detailed list” of the
search terms. Id. at *5. The court also held that the CIA was
not required “to search its operational files for all information,
including information on events occurring decades later, that
could hypothetically have been deemed central to” the Church
Committee’s investigation into assassination plots. Id. at *6.
Finally, the court rejected Porup’s challenges to the Agency’s
redactions and withholdings, finding that the Declaration’s
justifications “easily satisf[y] the deferential standard that
courts afford agency declarations relating to [the applicable
FOIA exemption] in matters of national security.” Id. at *8(citations omitted). The District Court did not make a finding
on segregability of the withheld or redacted documents.
Porup timely appealed the District Court’s order.
II. ANALYSIS
A. Standards of Review
A trial court must grant a party’s motion for summary
judgment when “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). This court “review[s] de novo a district
11
court’s grant of summary judgment in favor of an agency which
claims to have complied with FOIA.” Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 889 (D.C. Cir.
1995) (citation omitted). A grant of summary judgment on
mootness grounds is also reviewed de novo. See City of Hous.
v. HUD, 24 F.3d 1421, 1426 (D.C. Cir. 1994) (citation
omitted).
B. Porup’s Pattern or Practice Claim Is Moot
“A lawsuit becomes moot . . . ‘when the issues presented
are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” Almaqrami v. Pompeo, 933 F.3d 774,
779 (D.C. Cir. 2019) (quoting Chafin v. Chafin, 568 U.S. 165,
172 (2013)). In this case, it was the Agency’s own action –
communicating the new CIA policy described in the
Declaration – that allegedly rendered the pattern or practice
cause of action moot. Therefore, under the “voluntary
cessation” doctrine, we may not conclude that the Agency’s
purported termination of the disputed practice rendered the
case moot unless the CIA has demonstrated that “(1) there is
no reasonable expectation that the alleged violation will recur,
and (2) interim relief or events have completely or irrevocably
eradicated the effects of the alleged violation.” Zukerman v.
USPS, 961 F.3d 431, 442 (D.C. Cir. 2020) (citations and
internal quotation marks omitted); see Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (“A case might become moot if subsequent events made
it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” (citation omitted)). “The
burden of establishing mootness rests on the party that raises
the issue,” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d
449, 459 (D.C. Cir. 1998) (citation omitted), and it “is . . .
heavy,” County of Los Angeles v. Davis, 440 U.S. 625, 631
12
(1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629,
633 (1953)).
The parties agree that the mootness inquiry in this case
turns on whether the CIA has met its burden of demonstrating
that there is no reasonable expectation that the alleged violation
will recur. See Br. for Pl.-Appellant 19-20; Appellee’s
Response Br. 15. In Porup’s view, the Agency failed for two
reasons. First, Porup contends that the contents of the
Declaration are insufficiently decisive to moot his claim.
Second, Porup asserts that, under the so-called Best Evidence
Rule, the District Court should not have considered the
Declaration in holding that his pattern or practice claim was
moot. We are not persuaded by Porup’s arguments.
1. The Declaration Is a Decisive Statement of the
Agency’s New Policy
Porup is correct that the Declaration describes the CIA’s
new policy in terms that, at first glance, appear to vacillate
between words of requirement and words that convey some
degree of discretion. Compare Decl. ¶ 18, J.A. 47
(“[P]rocessors are required to engage in a context dependent
inquiry . . . .” (emphasis added)), and id. (“[T]he guidance
provided mandates that this fact specific analysis will be
applied to requests moving forward . . . .” (emphases added)),
with id. (noting that processors have been “generally instructed
that the Agency should not decline to process requests solely
because they pertain to activities . . . beyond the scope of the
Agency’s primary mission” (emphases added)), and id.(“Agency personnel should not decline to process requests
solely because the matters at issue are beyond the scope of the
Agency’s primary mission.” (emphasis added)). Viewed in
toto, however, we agree with the District Court that the
13
phrasing used in the Declaration is sufficient to meet the
Agency’s burden.
The use of the words “required” and “mandates” in the
Declaration provide strong assurance that the Agency’s
contested practice has been effectively vitiated. Going forward,
Agency personnel must follow the new guidance put in place
by CIA officials responsible for managing FOIA requests. And
Porup does not contend that Ms. Shiner – the “Information
Review Officer . . . for the Litigation Information Review
Office,” Decl. ¶ 2, J.A. 39, and a “senior CIA official,” Decl.
¶ 4, J.A. 40 – lacks either the competence or authority within
this sphere to effectively bind the Agency through her
averments.
Moreover, government counsel represented to the court at
oral argument that Agency personnel are required to adhere to
the mandatory terms of the guidance:
JUDGE: [I]s it your understanding . . . that the policy
is mandatory and . . . it would have to be mandatory
going forward?
COUNSEL FOR THE AGENCY: Yes, Your Honor,
I understand that this policy was communicated to
processors as CIA’s understanding of its obligations
under FOIA and, as such, is mandatory on the agency
by operation of statute and mandatory on CIA’s
employees by operation of the employer-employee
relationship.
Oral Arg. Tr. 15:9-20. We may consider such representations
when evaluating whether a claim is moot. See Deakins v.
Monaghan, 484 U.S. 193, 199 n.3 (1988) (explaining that
“[r]epresentations of counsel in response to inquiries at oral
argument . . . persuaded” the Court that one “question
14
presented” was moot); Bd. of Sch. Comm’rs of Indianapolis v.
Jacobs, 420 U.S. 128, 129 (1975) (per curiam) (finding case
moot based on information provided by counsel at oral
argument); Am. Bankers Ass’n v. Nat’l Credit Union Admin.,
934 F.3d 649, 661 (D.C. Cir. 2019) (deciding mootness
question “[b]ased on the government’s submission and
representations at oral argument” (emphasis added)).
The Declaration from the Information Review Officer of
the CIA and Agency counsel’s firm representations provide us
with sufficient assurance that the Agency’s new policy has
displaced the practices contested by Porup. The Agency has
assured the court that it will no longer decline FOIA requests
based solely on its perception that requested records implicate
activities outside the Agency’s primary and legislatively
authorized mission. The Agency’s voluntary cessation of the
challenged practices thus renders the dispute moot.
The two FOIA response letters submitted by Porup as
“new evidence” do not change our view of this matter. Some
“isolated mistakes by agency officials” do not, in and of
themselves, demonstrate the continued existence of an illicit
pattern or practice for mootness purposes. See Payne Enters.,
Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988). And
Porup has offered nothing to show that the CIA has been
following a practice that is at odds with the Declaration offered
by Ms. Shiner. Accordingly, the December 2017 and August
2018 FOIA response letters, though perhaps fallacious in their
reasoning, do not undermine our conclusion that Porup’s
pattern or practice claim is moot.
It is instructive to contrast the facts of this case with those
found by the court in Payne Enterprises. In Payne, the court
rejected an affidavit offered by the government to support its
claim that the contested practice in that case had been
15
voluntarily terminated by the agency. The disputed affidavit
did not purport to speak for the affiant’s superiors in the
agency, nor did it pledge future compliance by agency officials
who were authorized to offer such an assurance. 837 F.2d at
492. The situation in this case is quite different. The
Declaration offered by the Agency is from a “senior CIA
official”; and the scope of authority of the CIA official is
unchallenged.
Porup’s arguments regarding the CIA’s new policy focus
on the meaning of the terms of the Declaration, not the
authority of the source. It is also noteworthy that unlike Payne
Enterprises, in which the government provided only “weak
assurance” as to the likelihood of recurrence of the agency
policies at issue in that case, see 837 F.2d at 492, we have no
such concerns here regarding the legitimacy of the CIA’s
voluntary cessation of its challenged practices.
In sum, the Agency has clearly met its burden in showing
that its new policy has completely eradicated the effects of the
CIA practices that are the subject of Porup’s complaint, and
there is no reasonable expectation that the CIA’s past practices
will recur.
2. Admission of the Shiner Declaration Is Not
Precluded by the “Best Evidence” Rule
Porup contends that the Declaration offered by the Agency
should not be considered because it does not satisfy the
requirements of the Best Evidence rule. He is mistaken.
The essence of Porup’s argument is that the CIA’s “failure
to submit evidence of the alleged guidance beyond a
declarant’s cherry-picked and qualified summary is not
sufficient to overcome Porup’s evidence that there is a genuine
issue of material fact regarding the scope and efficacy of the
16
alleged policy shift.” Br. for Pl.-Appellant 19. Porup points to
both Federal Rule of Evidence 1002 and Federal Rule of Civil
Procedure 56(c)(2) to support his position. Rule 1002 states
that “[a]n original writing, recording, or photograph is required
in order to prove its content unless these rules or a federal
statute provides otherwise.” Rule 56(c)(2) states that, in a
summary judgment action, “[a] party may object that the
material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” See Jeffries v.
Barr, 965 F.3d 843, 850 n.1 (D.C. Cir. 2020) (citing the “best
evidence rule” in holding that the court could not consider a
statement in litigant’s declaration opposing summary judgment
describing contents of separate written document); Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365,
1369 (D.C. Cir. 2000) (holding that, in a summary judgment
action, “while a [party] is not required to produce evidence in
a form that would be admissible at trial, the evidence still must
be capable of being converted into admissible evidence”). The
problem with Porup’s argument is that it is based on the
incorrect assumption that the Shiner Declaration emanates
from a separate written guidance that the Agency was required
to introduce into evidence.
The CIA offered the Declaration to explain how the
Agency had changed its policy to moot Porup’s pattern or
practice claim. The Declaration explains, in conclusive terms,
that Information Management Services personnel at the CIA
were “instructed that [they] should not decline to process
requests solely because they pertain to activities or issues that
are beyond the scope of the Agency’s primary mission.” Decl.
¶ 18, J.A. 47. Porup suggests that the instructions given to CIA
personnel must have come in the form of a “new policy
document.” Br. for Pl.-Appellant 20 (emphasis added). But
there is absolutely nothing in the record to support this
suggestion. Indeed, the Declaration’s explanation of the CIA’s
17
new policy does not reference any other document. And if
Porup thought that there was such a “document,” he could have
pressed for discovery to review it. See FED. R. CIV. P. 56(d)(2).
Porup has not advanced any claim with this court that he was
improperly denied discovery by the District Court.
Given the record in this case, it is clear that the Declaration
is the best evidence of the CIA’s new policy. The Declaration’s
explanation of the new policy is a self-standing statement; and
it is the only written explication of the new policy to which the
Agency has subscribed. It is undisputed that the CIA followed
the commands of the Declaration when it released a number of
documents that were responsive to Porup’s FOIA request. And
the Agency has made it clear that is bound by the strictures of
the Declaration going forward. So even if there was a guidance
document that was a precursor to the Declaration, this would
not undercut the Declaration’s evidentiary significance in
confirming that the Agency had adopted a new policy that
effectively moots Porup’s pattern and practice cause of action.
Given the circumstances surrounding the adoption of the
CIA’s new policy, it is hardly surprising that the District Court
found that “Porup misconceives the scope of the best evidence
rule.” Porup, 2020 WL 1244928, at *4. The District Court
usefully explained that:
“[A]n event may be proved by nondocumentary
evidence, even though a written record of it was
made.” FED. R. EVID. 1002 advisory committee’s note
to 1972 proposed rules (emphasis added). It is only
where “the event is sought to be proved by the written
record, the rule applies.” Id. (emphasis added). “For
example,” the advisory committee explained,
“payment may be proved without producing the
written receipt which was given.” Id.
18So too here. The existence of an agency policy may
be proved by a declaration from an agency official,
even if a written record of the policy exists. . . .
In any case, it is well established that summary
judgment evidence need not be “in a form that would
be admissible at trial,” so long as it is “capable of
being converted into admissible evidence.” . . .
The declaration of Ms. Shiner, a veteran Information
Review Officer in the Litigation Information Review
Office of the CIA, attesting to the implementation of
the new mandatory policy for processing of FOIA
requests clears this standard. . . . Porup points to
nothing in the record that would call Ms. Shiner’s
attestation into question.
Porup, 2020 WL 1244928, at *4 (citations omitted).
Porup has identified nothing within or outside the record
that would cause us to doubt that the CIA’s new policy is
accurately reflected in the Declaration. Based on that
document, Porup’s pattern or practice cause of action is moot.
It does not matter whether there may have been a precursor to
the Declaration. The Declaration is the definitive statement of
the Agency’s new policy. And the facts asserted in the
Declaration could have been reduced to admissible evidence,
i.e., Ms. Shiner could have testified to the same facts if the
parties’ dispute had gone beyond summary judgment.
Accordingly, the District Court was permitted to consider the
Declaration when evaluating the Agency’s motion for
summary judgment. We therefore affirm the judgment of the
District Court that Porup’s pattern or practice claim is moot.
19
C. Porup’s Challenges to the Government’s Searches,
Withholdings, and Redactions
“FOIA calls for broad disclosure of Government records,”
but Congress has “provided that agency records may be
withheld from disclosure under . . . nine exemptions defined
in 5 U.S.C. § 552(b).” CIA v. Sims, 471 U.S. 159, 166-67
(1985) (footnote omitted). One such exemption covers records
that have been “specifically exempted from disclosure by
[another] statute” (“Exemption 3”). 5 U.S.C. § 552(b)(3).
The Supreme Court has previously held that the National
Security Act of 1947 (the “National Security Act”), “which
calls for the Director of Central Intelligence to protect
intelligence sources and methods, . . . qualifies as a
withholding statute under Exemption 3.” Sims, 471 U.S. at 167(internal quotation marks omitted); see 50 U.S.C. § 3024(i)(1).
In addition, under the Central Intelligence Agency Information
Act of 1984 (“CIA Information Act”), the Agency may exempt
its operational files from publication or disclosure under FOIA.
See 50 U.S.C. § 3141(a). However, there are three exceptions
to this provision of the CIA Information Act, the last of which
covers
operational files . . . concerning . . . the specific
subject matter of an investigation by the
congressional intelligence committees, the
Intelligence Oversight Board, the Department of
Justice, the Office of General Counsel of the Central
Intelligence Agency, the Office of Inspector General
of the Central Intelligence Agency, or the Office of
the Director of National Intelligence for any
impropriety, or violation of law, Executive order, or
Presidential directive, in the conduct of an
intelligence activity.
20
Id. § 3141(c)(3) (emphases added).
1. CIA Information Act Exception
Porup asserts – relying on this court’s decision in Morley
v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) – that the Agency must
search its operational files for responsive documents postdating
December 31, 1980, or approximately five years after the
Church Committee released its “Interim Report on Alleged
Assassination Plots” and four years after the Committee ceased
operations. The holding of Morley, however, is not as broad as
Porup argues.
In Morley, the FOIA plaintiff sought documents pertaining
to “the CIA case officer for the anti-Castro organization known
as the Directorio Revolucionario Estudantil (“DRE”) in
1963.” Id. at 1113. “[T]he DRE had contact with Lee Harvey
Oswald in the months before President Kennedy’s
assassination,” id., and “the scope of the Church Committee
investigation specifically encompassed operations of the CIA
and other federal agencies in investigating the assassination,”
id. at 1117 (citation omitted). See also id. (“Significantly, the
Church Committee found that the CIA inquiry was deficient on
the specific question of the significance of Oswald’s contacts
with pro- and anti-Castro groups for the many months before
the assassination.” (emphasis added) (alteration, citation, and
internal quotation marks omitted)). In interpreting the scope of
the § 3141(c)(3) exception, the court stated “that a FOIA
request concern[s] ‘the specific subject matter of an
investigation’ . . . where the investigating committee would
have deemed the records at issue to be central to its inquiry.”
Id. at 1118 (emphasis added).
Porup argues that any operational files relating to covert
assassination attempts, even if generated well after the Church
Committee had ceased to operate, would satisfy the Morley
21
standard. However, Morley presented an easily distinguishable
factual scenario, as it concerned documents “surrounding a
particular event” that had been thoroughly investigated by the
Church Committee, i.e., President Kennedy’s assassination and
the CIA’s conduct leading up to it. See id. at 1117-18. Thus,
the Morley court’s holding concerned already-existing records
that the Church Committee would have deemed central to its
inquiry had it known about them at the time of its investigation.
By contrast, Porup invokes a much broader claim that an
investigating committee would deem records central to its
inquiry even if they did not yet exist. It does not appear that the
Morley court intended for its holding on this issue to be so
general and all-encompassing as Porup asserts, given the
court’s ensuing discussion of the material facts on the issue.
See id. at 1118 (“The Church Committee posed a targeted
inquiry investigating the performance of the intelligence
agencies surrounding a particular event. The role of individual
CIA officers during this event was key to such an inquiry,
information that the committee would have sought out rather
than merely happened upon. . . . [T]he focus of the committee’s
investigation was the relationship between organizations like
the DRE and the Kennedy assassination. The evidence
proffered by [the plaintiff] indicates that [the CIA case officer]
was in a position of central importance to such an investigation
and was thus covered by its ‘specific subject matter.’”
(emphasis added) (citation omitted)).
Furthermore, Porup’s proposed approach would render the
word “specific” in the statutory text largely nugatory, a result
to be avoided. See Del. Dep’t of Nat. Res. & Env’t Control v.
EPA, 895 F.3d 90, 99 (D.C. Cir. 2018) (“[W]e strive to
construe [a] statute[] ‘so that effect is given to all its provisions,
so that no part will be inoperative or superfluous, void or
insignificant.’” (quoting Corley v. United States, 556 U.S. 303,
22
314 (2009))). And Porup cites no authority or support for his
position other than a single sentence in Morley. We therefore
reject his reading of the statute and agree with the District Court
that the Agency sufficiently searched its operational files in
response to Porup’s request.
2. Other Grounds Raised by Porup in Challenging
the Agency’s Searches
Porup next contends that summary judgment was
premature because the Agency “fail[ed] to state that it
[searched for] the names of . . . unrevealed programs.” Br. for
Pl.-Appellant 22; see id. at 21-22. Similarly, Porup asserts that
the Shiner Declarations did not demonstrate that the Agency
considered whether investigative bodies referenced in 50
U.S.C. § 3141(c)(3), in addition to the Church Committee,
conducted nonpublic investigations into covert assassination
plots. See id. at 10-13. And he argues that the Shiner
Declarations did not sufficiently describe how the Agency
conducted its searches, particularly regarding the use of
Boolean connectors. See id. at 13-14. However, Porup has not
demonstrated a genuine dispute of material fact on these issues.
23
“[A]n agency responding to a FOIA request is simply
required to conduct a search reasonably calculated to uncover
all relevant documents.” In re: Clinton, 973 F.3d 106, 116
(D.C. Cir. 2020) (alteration, citation, and internal quotation
marks omitted). “[I]n response to a challenge to the adequacy
of its search for requested records[,] [an] 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 searched.’” Iturralde v. Comptroller of Currency, 315
F.3d 311, 313-14 (D.C. Cir. 2003) (fourth alteration in original)
(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999)). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch,
Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (per curiam)).
The Shiner Declarations listed several of the search terms
that were used by the Agency. In addition, the declarations
explained that subject matter experts worked to determine these
and other search terms, as well as the locations to be searched.
The Supplemental Declaration explained that the searches
“used Boolean connectors to create logical search queries.”
Suppl. Decl. ¶ 6, J.A. 221. And the Declaration averred that the
Agency’s searches were “reasonably calculated” to identify all
responsive records, and that “all files likely to contain
responsive material were searched.” Decl. ¶ 16, J.A. 45. Those
sworn assertions were sufficient to carry the Agency’s burden
as to its search terms and methodology.
24
Porup also suggests that the Agency may not have run
searches for covert assassination programs that have not yet
been publicly disclosed and may have neglected to consider
nonpublic investigations by bodies other than the Church
Committee, because “[t]he records being requested in this case
have the potential to be extremely sensitive and potentially
embarrassing to the agency.” Br. for Pl.-Appellant 22.
However, he offers no evidence that such concerns caused the
Agency to decline to search for, or otherwise suppress
disclosure of, responsive records. This “pure[] speculati[on]”
is not sufficient to create a genuine dispute of material fact on
these issues. See SafeCard Servs., 926 F.2d at 1200 (citation
omitted).
3. Challenges to the Agency’s Withholdings and
Redactions
Porup argues that the District Court misconceived the
documents for which he challenged withholdings and
redactions made by the Agency pursuant to Exemption 3 and
the National Security Act. As the Agency conceded during oral
argument, this may well be true. However, Porup has not
explained why the number of documents at issue undermines a
finding that the broadly applicable information contained in the
Shiner Declarations carried the Agency’s burden on this point.
The Agency explained in the Declaration why it had redacted
and withheld documents pursuant to Exemption 3 and the
National Security Act, focusing on the harm that might result
from disclosure. See Decl. ¶ 33, J.A. 57-58 (asserting “that
disclosure of [such] information would expose CIA officers
and highlight capabilities and limitations of intelligence
activities of the Agency, which could render them ineffective,”
and might “reveal sensitive security requirements, potentially
putting Agency officers at risk”). Exercising de novo review,
we find that the Agency’s representations are sufficient to carry
25
its burden, regardless of whether they cover more documents
than the District Court realized. See Wolf v. CIA, 473 F.3d 370,
377 (D.C. Cir. 2007) (noting that courts must “give[] . . .
great[] deference to CIA assertions of harm to intelligence
sources and methods under the National Security Act” (citation
omitted)).
Moreover, Porup has explicitly declined to raise his
“substantive arguments about specific withholdings” before
this court “in the interest of judicial economy.” Br. for Pl.-
Appellant 17 n.8. While he still maintains in a footnote that
summary judgment was incorrect as to all of the Agency’s
Exemption 3 withholdings pursuant to the National Security
Act, see id., his conclusory arguments are “insufficiently
developed to constitute a serious challenge to the district
court’s” findings. See Massachusetts v. Microsoft Corp., 373
F.3d 1199, 1241 (D.C. Cir. 2004); see also CTS Corp. v. EPA,
759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote is no place to
make a substantive legal argument on appeal; hiding an
argument there and then articulating it in only a conclusory
fashion results in forfeiture.”). Thus, we decline to address
them.
D. Segregability
Finally, Porup asserts that the case must be remanded for
the District Court to make a segregability finding. “FOIA
provides that ‘[a]ny reasonably segregable portion of a record
shall be provided to any person requesting such record after
deletion of the portions which are exempt.’” Machado Amadis
v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020)
(alteration in original) (quoting 5 U.S.C. § 552(b)). We have
held that a trial court must make a segregability finding if a
federal agency has redacted or withheld documents pursuant to
FOIA exemptions. See, e.g., Sussman v. U.S. Marshals Serv.,
26
494 F.3d 1106, 1116 (D.C. Cir. 2007); Trans-Pac. Policing
Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.
Cir. 1999). And in at least one case, a panel of the court stated
that “[i]f the district court approves withholding without such
a finding, remand is required even if the requester did not raise
the issue of segregability before the [district] court.” Sussman,
494 F.3d at 1116 (citations omitted).
However, other panels of this court have made
segregability findings in the first instance, instead of
“remanding . . . solely for th[e] purpose” of such findings.
Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008) (emphasis
added); see Machado Amadis, 971 F.3d at 371. Because “our
review of summary judgment is de novo[,] . . . we have the
same record before us as did the district court [and] we are just
as capable of evaluating the [CIA]’s [declarations] regarding
segregability as is the court below.” Juarez, 518 F.3d at 60.
Thus, rather than remanding solely for the District Court to
pass upon segregability, we will exercise our discretion to
make such a determination in the first instance.
Based on the Shiner Declarations, the Agency has carried
its burden in demonstrating that it released all segregable
portions of the responsive documents. Ms. Shiner attested that
the Agency had “conducted a page-by-page and line-by-line
review, and released all reasonably segregable, non-exempt
information” within responsive records. Decl. ¶ 38, J.A. 60.
Moreover, Ms. Shiner “determined that no additional
information may be released without divulging information
that . . . falls within the scope of one or more FOIA
exemptions.” Id. Those sworn statements sufficiently establish
that “no portions of the withheld documents may be segregated
and released.” Juarez, 518 F.3d at 61; see also Machado
Amadis, 971 F.3d at 371-72 (noting that government agency’s
“line-by-line review” of documents in responding to FOIA
27
request was sufficient as to segregability responsibilities).
Accordingly, we find that the Agency has met its segregability
obligations.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
District Court.