Aron Dibacco v. United States Army , 795 F.3d 178 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2014 Decided July 31, 2015
No. 13-5353
ARON DIBACCO AND BARBARA WEBSTER,
APPELLANTS
v.
UNITED STATES ARMY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:87-cv-03349)
James H. Lesar argued the cause and filed the briefs for
appellants.
Fred Elmore Haynes, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed, and
R. Craig Lawrence, Assistant U.S. Attorney.
Before: GARLAND, Chief Judge, and ROGERS and
MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Removing the cloak from the
cloak-and-dagger business of spying can be a lengthy and
arduous process. Understandably so, given the competing
needs to protect national security and to ensure appropriate
governmental transparency. The 30-year odyssey of this
Freedom of Information Act case attests to the complex twists
and turns that the disclosure process can take.
In 1985, Carl Oglesby filed a request under the Freedom
of Information Act with six federal agencies, seeking
information on Reinhard Gehlen, a former Nazi general
through whom the United States engaged in clandestine
espionage after World War II. Thirty years, an intervening
Act of Congress, and two appeals later, more than ten
thousand pages of documents have been released and the
quest for information has narrowed substantially. With Mr.
Oglesby’s passing in 2011, his daughter, Aron DiBacco, and
partner, Barbara Webster, have now taken up Oglesby’s
cause. In this third appeal, DiBacco and Webster challenge
the adequacy of the Army’s and CIA’s searches for and
disclosures of documents, as well as the CIA’s justification
for withholding certain information on national security
grounds.
The district court concluded that the Army and CIA have
done what the Freedom of Information Act requires. We
agree, except that we must remand for the district court to
address in the first instance DiBacco’s and Webster’s
challenges to redactions in a batch of records that the Army
disclosed to them while this appeal was pending.
3
I
Statutory Framework
The Freedom of Information Act
Congress enacted the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to promote the “broad disclosure
of Government records” by generally requiring federal
agencies to make their records available to the public on
request. Department of Justice v. Julian, 486 U.S. 1, 8 (1988)
(internal quotation marks omitted). But Congress also
“realized that legitimate governmental and private interests
could be harmed by release of certain types of information.”
Id. (internal quotation marks omitted). Accordingly, FOIA
“balance[s] the public’s need for access to official information
with the Government’s need for confidentiality,” Weinberger
v. Catholic Action of Hawaii, 454 U.S. 139, 144 (1981), by
exempting nine categories of records from disclosure, see 5
U.S.C. § 552(b). While those exemptions “must be narrowly
construed,” Milner v. Department of Navy, 562 U.S. 562, 565
(2011) (internal quotation marks omitted), they still must be
given “meaningful reach and application,” John Doe Agency
v. John Doe Corp., 493 U.S. 146, 152 (1989).
FOIA Exemptions 1 and 3 are at issue in this case.
Exemption 1 authorizes the withholding of “matters” that are
“specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy” if they “are in fact properly
classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1).
Exemption 3 excludes “matters” that are “specifically
exempted from disclosure by statute” if that statute “requires
4
that the matters be withheld from the public in such a manner
as to leave no discretion on the issue” or “establishes
particular criteria for withholding or refers to particular types
of matters to be withheld[.]” 5 U.S.C. § 552(b)(3). Courts
have held that a provision of the National Security Act of
1947, which calls for the Director of National Intelligence to
protect “intelligence sources and methods from unauthorized
disclosure,” 50 U.S.C. § 3024(i)(1), is a valid Exemption 3
statute. CIA v. Sims, 471 U.S. 159, 167 (1985); accord
Larson v. Department of State, 565 F.3d 857, 865 (D.C. Cir.
2009).
Under FOIA, agencies may charge reasonable fees to
help defray their costs in responding to a FOIA request, but
they must waive or reduce their fees if disclosure of the
requested information “is in the public interest because it is
likely to contribute significantly to public understanding of
the operations or activities of the government and is not
primarily in the commercial interest of the requester.” 5
U.S.C. § 552(a)(4)(A)(iii).
When an agency subject to FOIA receives a request for
records, it must determine within twenty days whether to
comply with that request and, once it does, must immediately
notify the requester of its determination and reasoning. 5
U.S.C. § 552(a)(6)(A)(i). Upon receipt of that determination,
the requester may administratively appeal the agency’s
decision, and the agency must decide the appeal within twenty
days. See id. § 552(a)(6)(A)(ii). Exhaustion of that
administrative appeal process is a prerequisite to seeking
judicial relief, unless the agency has not responded within the
statutory time limits. See id. § 552(a)(6)(C); Oglesby v.
Department of Army (Oglesby I), 920 F.2d 57, 61–62 (D.C.
Cir. 1990).
5
Federal district courts have jurisdiction under FOIA “to
enjoin [an] agency from withholding agency records and to
order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). In
a FOIA suit, the burden is “on the agency to sustain its
action,” and the district court must “determine the matter de
novo.” Id.
The Nazi War Crimes Disclosure Act
Congress enacted the Nazi War Crimes Disclosure Act
(“Disclosure Act”), Pub. L. No. 105-246, 112 Stat. 1859
(1998) (codified as amended at 5 U.S.C. § 552 note), to spur
disclosure of millions of pages of government records from
the World War II era. See Nazi War Crimes & Japanese
Imperial Government Records Interagency Working Group,
Final Report to the United States Congress 1 (April 2007)
(“Interagency Report”). To that end, the Disclosure Act
required federal agencies to “locate, identify, inventory,
recommend for declassification, and make available to the
public at the National Archives and Records Administration,”
with few exceptions, any remaining classified records
concerning war crimes committed by Nazi Germany and its
allies. Pub. L. No. 105-246, § 2(c)(1).
The Disclosure Act also directed the President to
establish the “Nazi War Criminal Records Interagency
Working Group,” Pub. L. No. 105-246, § 2(b)(1), composed
of various high-level government officials and three members
of the public. The Working Group was tasked with
coordinating agencies’ efforts to fulfill the Disclosure Act’s
mandate. See Interagency Report, at 1. 1 Those efforts led to
1
This group, as constituted by the President, included
representatives from the Holocaust Museum, National Archives,
6
the declassification and public release of over 8.5 million
pages of World War II and post-war records. See Interagency
Report, at 2.
Factual and Procedural Background
General Reinhard Gehlen served as Hitler’s senior
military intelligence officer on the Eastern Front. See
Oglesby I, 920 F.2d at 60. After the war, Gehlen became an
intelligence asset for the United States, secretly agreeing to
operate an extensive spy network in Europe under United
States command. See id. at 60. Gehlen operated this spy
network, known as the Gehlen Organization, until 1956, at
which point it became part of the newly formed intelligence
service of the Federal Republic of Germany. Gehlen led the
latter until his retirement in 1968. Interagency Report, at 11,
13, 30, 48; CIA Biographic Sketch on General Reinhard
Gehlen, NWC-002652 (declassified and approved for release
under the Disclosure Act in 2001), J.A. 1084–1085.
Carl Oglesby was a journalist interested in the
intelligence relationship between the United States and
Gehlen. His rounds of effort over many years to obtain
information under FOIA contributed materially to the
disclosure of the Gehlen Organization’s covert relationship
with the federal government.
Department of State, Department of Defense, FBI, CIA, National
Security Council, and Department of Justice. Interagency Report,
at 1. In 2000, Congress renamed this group the “Nazi War Crimes
and Japanese Imperial Government Records Interagency Working
Group,” and clarified that its disclosure mandate extended to all
classified records concerning war crimes committed by the
Japanese Imperial Government. See Japanese Imperial Government
Disclosure Act of 2000, Pub. L. No. 106-567, Title VIII, 114 Stat.
2864–2867.
7
Round One
In 1985, Oglesby submitted FOIA requests seeking
information on that relationship to six federal agencies: the
Department of the Army, the Department of State, the Federal
Bureau of Investigation, the Central Intelligence Agency, the
National Archives and Records Administration, and the
National Security Agency (“NSA”). See DiBacco v.
Department of Army, 983 F. Supp. 2d 44, 49 (D.D.C. 2013).
Oglesby specifically sought:
(i) Records of World War II German General
Reinhard Gehlen and his relationship with any
United States officials during the period 1944
through 1956;
(ii) Records of the meetings held at Fort Hunt,
Virginia, in the summer of 1945 between
Gehlen and American officials including U.S.
Army General George V. Strong and Office of
Strategic Services officer Allen Welsh Dulles;
(iii) Records of U.S. Army “Operation Rusty,”
carried out in Europe between 1945 and 1948;
(iv) Records of post-war Nazi German
underground organizations such as Odessa,
Kamaradenwerk, Bruderschaft, Werewolves,
and Die Spanne; and
(v) Records of the Office of Strategic Services’
“Operation Sunrise” in 1945.
Complaint ¶¶ 5, 23, 34, 40, 57, 63; J.A. 54 (request to CIA);
J.A. 79 (request to FBI); J.A. 97 (request to National
Archives); see also Oglesby v. Department of Army (Oglesby
II), 79 F.3d 1172, 1175–1176 (D.C. Cir. 1996). Oglesby also
sought a waiver of search and copying fees from each agency
under 5 U.S.C. § 552(a)(4)(A). Oglesby I, 920 F.2d at 60.
8
The agencies collectively released 384 pages of
documents (many redacted) in response, invoking various
FOIA exemptions as a basis for refusing further disclosures.
See Oglesby I, 920 F.2d at 66–71. The Army, CIA, and
National Archives also rejected Oglesby’s fee-waiver
requests. The NSA in due course agreed to waive its fees. Id.
In 1987, Oglesby filed suit under FOIA in the United
States District Court for the District of Columbia, arguing that
the agencies had performed inadequate searches for
responsive documents, failed to properly support their
exemption claims, and wrongly refused to waive their fees.
Oglesby I, 920 F.2d at 61. The district court granted summary
judgment to the agencies on all issues. Id.
This court reversed. We first held that only claims
against one agency—the State Department—were before us,
because Oglesby had failed to exhaust his claims with the
other five agencies. We further held that the State
Department had provided insufficient details about its search
for documents to support summary judgment. Oglesby I, 920
F.2d at 71. We vacated and remanded for further proceedings
on the adequacy of the State Department’s search and for
Oglesby to exhaust his claims with the other agencies. Id.
We did not reach Oglesby’s fee-waiver arguments, but
suggested that the Army reconsider its denial of a waiver in
light of the NSA’s decision to grant one. Oglesby I, 920 F.2d
at 66 n.11.
Round Two
Several years later, having exhausted his administrative
remedies with the other five agencies without satisfactory
resolution, Oglesby returned to district court. See Oglesby II,
79 F.3d at 1175. Shortly after Oglesby filed his complaint
9
seeking further disclosures by all six agencies, the Army and
CIA granted Oglesby fee waivers, and the Army, CIA, and
NSA released additional documents. See id. at 1179–1184.
All six agencies filed affidavits describing their searches for
documents, and those agencies that had withheld documents
included Vaughn indices to justify their withholdings. See id.
at 1176. 2 The district court again granted summary judgment
for all six agencies. Id.
We, again, reversed in part. Oglesby II, 79 F.3d at 1175.
We held that the Army, CIA, and NSA had failed to
adequately justify their withholdings in their Vaughn indices,
and that the Army and CIA had failed to establish the
adequacy of their searches. Id. With respect to all claims
against the State Department, FBI, and National Archives, we
affirmed the district court’s grant of summary judgment. Id.
Round Three
While the case against the Army, CIA, and NSA was
pending on remand, intervening legislation—the 1998
Disclosure Act—significantly altered the legal landscape.
That Act led the CIA to revisit its stance toward records
2
In a Vaughn index, an agency “indicates in some descriptive way
which documents the agency is withholding and which FOIA
exemptions it believes apply.” American Civil Liberties Union v.
CIA, 710 F.3d 422, 432 (D.C. Cir. 2013). The name comes from
Vaughn v. Rosen, which first established the process by which an
agency may discharge its burden to justify withholding information
under FOIA exemptions. See 484 F.2d 820, 826–828 (D.C. Cir.
1973). Although agencies frequently rely on Vaughn indices, “[t]he
materials provided by the agency may take any form so long as they
give the reviewing court a reasonable basis to evaluate the claim of
privilege.” American Civil Liberties Union, 710 F.3d at 433
(quoting Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)).
10
concerning General Gehlen. Previously, because the CIA’s
relationship with Gehlen had been classified, the agency
issued so-called Glomar responses “neither confirm[ing] nor
deny[ing] the existence or nonexistence of responsive
records” to Oglesby’s requests. McNair Decl. ¶¶ 2–4 (Sept.
20, 2000), J.A. 594–596. 3
In the wake of the Disclosure Act, the CIA filed a
declaration in this case publicly acknowledging its
relationship with General Gehlen for the first time. See
McNair Decl. ¶¶ 4–10. The declaration explained that, even
though the United States government did not consider General
Gehlen to be a Nazi war criminal, the agency’s Disclosure
Act searches uncovered other Nazi war criminal records that
revealed the United States’ intelligence relationship with
Gehlen. See id. ¶ 7; Interagency Report, at 48. Rather than
withhold such information as beyond the purview of the
Disclosure Act, the agency decided to declassify it.
That declassification, the CIA explained, would “have a
significant impact upon this case” because the agency could
now process Oglesby’s FOIA request on Gehlen. McNair
Decl. ¶¶ 2, 10. A series of status reports followed in which
the CIA, NSA, and Army laid bare the time-consuming task
3
A Glomar response is permitted “only when confirming or
denying the existence of records would itself ‘cause harm
cognizable under a[] FOIA exception.’” Roth v. Department of
Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011) (quoting Wolf v. CIA,
473 F.3d 370, 374 (D.C. Cir. 2007)); see also American Civil
Liberties Union, 710 F.3d at 426 n.1 (“The name [Glomar
response] is derived from the facts of Phillippi v. CIA, in which this
court addressed the CIA’s refusal to confirm or deny whether it had
documents relating to Howard Hughes’ ship, the Glomar Explorer,
which had reputedly been used in an attempt to recover a lost
Soviet submarine.”) (citing 546 F.2d 1009 (D.C. Cir. 1976)).
11
in front of them. In one early report, the CIA advised that
recent searches had turned up “approximately 251 boxes of
material, and 2,901 folders, with documents that likely
contain records regarding General Gehlen.” Defendants’
Status Report 1–2 (Dec. 11, 2000), J.A. 622–623.
The CIA proposed consolidating its response to
Oglesby’s FOIA request with its ongoing efforts under the
Disclosure Act. Defendants’ Status Report at 2. Estimating
that it would take a year to complete its Disclosure Act
process, the CIA asked for two years to finish action on
Oglesby’s FOIA request because it anticipated finding and
processing “additional documents that go beyond the scope of
the [Disclosure] Act[.]” Id. The Army, for its part, joined the
CIA’s request, advising that it, too, would need to review
additional materials. Id. at 2–3.
During a status hearing in January 2001, agency counsel
again indicated that the CIA “now has 251 boxes,” each “one
cubic foot in size” and expected to be “full” “of material
regarding the Gehlen organization,” totaling “anywhere
between 251,000 and 775,000 pages[.]” Tr. of Hearing 4:15–
23 (Jan. 9, 2001), J.A. 630.
In a subsequent status report, the agency explained that,
through extensive search efforts, it had “identified [a]
potential universe of over 25,000 responsive documents.”
Defendants’ Status Report 2 (Feb. 5, 2001), J.A. 648. After
reviewing those documents, the CIA would forward them to
the National Archives for public release. Id. Once the
National Archives provided the CIA with a final release copy
of the documents, the CIA would provide Oglesby with any
documents responsive to his FOIA request. Id. at 3. The CIA
reiterated its two-year estimate for the project’s completion.
Id. at 4.
 12
After that flurry of activity, the case languished for over a
decade, with no substantive action by the court, the agencies,
or Oglesby. Oglesby passed away in September 2011.
Round Four
In December 2011, Oglesby’s daughter, Aron DiBacco,
and domestic partner, Barbara Webster (collectively,
“DiBacco”), filed a motion to substitute themselves as
plaintiffs, which the district court granted. DiBacco, 983 F.
Supp. 2d at 52. Both the agencies and DiBacco then filed for
summary judgment. DiBacco also moved to compel
disclosure of classified declarations referenced in the
agencies’ summary judgment briefing the previous decade.
The district court granted summary judgment for the
agencies. As a preliminary matter, the court ruled that the
Interagency Report (prepared by the Disclosure Act’s
Interagency Working Group to document its efforts under the
Act) was a “record” of a “public office” admissible under
Federal Rule of Evidence 803(8). DiBacco, 983 F. Supp. 2d
at 54–55. The court also declined to compel disclosure of the
previously filed classified declarations because it had neither
reviewed nor relied on them in any proceeding. Id. at 53.
The court next ruled that the CIA had conducted an
adequate search for documents. DiBacco, 983 F. Supp. 2d at
55–58. Relying on the Interagency Report and on the CIA’s
declarations, the court determined that the CIA’s Disclosure
Act searches were reasonably calculated to locate records
responsive to Oglesby’s FOIA request. Id. at 56.
The court also upheld the CIA’s withholdings under
Exemptions 1 and 3. DiBacco, 983 F. Supp. 2d at 58–61.
With regard to Exemption 1, the court concluded that,
13
contrary to DiBacco’s claim, certain documents were properly
classified decades ago, with markings required under the
then-governing Executive Orders. Id. As for Exemption 3,
the court concluded that the CIA retained the power to
withhold documents to protect intelligence sources and
methods under the National Security Act. Id. at 61.
Turning to the Army, the district court ruled that its
search for responsive records was proper. DiBacco, 983 F.
Supp. 2d at 61–64. While DiBacco argued that the Army had
transferred responsive documents to the National Archives to
evade its FOIA obligations, the district court ruled that, in
fact, the transfer facilitated public access to the documents as
required by the Disclosure Act. Id. at 63–64. The district
court also rejected DiBacco’s challenge to the Army’s search,
relying again on the Interagency Report and declarations
describing the search. Id. at 62–64.
As for the NSA, the district court ruled that it had
adequately justified its withholding of records. DiBacco, 983
F. Supp. 2d at 64–66. DiBacco has not challenged that ruling.
II
Analysis
The district court had jurisdiction under 28 U.S.C. § 1331
and 5 U.S.C. § 552(a)(4)(B). We have jurisdiction over the
district court’s final judgment under 28 U.S.C. § 1291.
Claims Against the Army
DiBacco contends that the Army failed to conduct an
adequate search for documents. She also maintains that the
14
Army violated FOIA by transferring relevant documents to
the National Archives. Neither argument succeeds.
The Army’s Search for Records
We review de novo the adequacy of the Army’s search.
See Valencia-Lucena v. United States Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999). The burden is on the agency to
demonstrate that it made a “good faith effort to conduct a
search * * * using methods which can be reasonably expected
to produce the information requested.” Oglesby I, 920 F.2d at
68. Courts may rely on 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 (if such records exist) were searched.”
Valencia-Lucena, 180 F.3d at 326 (internal quotation marks
omitted). Summary judgment must be denied “if a review of
the record raises substantial doubt, particularly in view of well
defined requests and positive indications of overlooked
materials[.]” Id. (internal quotation marks omitted).
The Army relies mainly on its search efforts under the
Disclosure Act to demonstrate the adequacy of its search for
documents responsive to Oglesby’s FOIA request. Much of
that process is described in the Interagency Report that the
Interagency Working Group submitted to Congress. The
district court relied on that report in granting summary
judgment. DiBacco, 983 F. Supp. 2d at 54–55. The court
also relied on the Army’s declarations—one from Martha
Wagner Murphy, Chief of the Special Access and FOIA
Branch at the National Archives, and two from Bradley
Dorris, Director of the FOIA and Investigative Records Office
at the United States Army Intelligence and Security
Command (“INSCOM”). See Murphy Decl. (Dec. 14, 2012),
15
J.A. 689–700; First Dorris Decl. (Nov. 27, 2012), J.A. 701–
702; Second Dorris Decl. (March 20, 2013), J.A. 1050–1052.
According to DiBacco, the district court should not have
relied on the Interagency Report because it was inadmissible.
Not so. Federal Rule of Evidence 803(8), an exception to the
hearsay bar, allows as evidence a “record or statement of a
public office” where, as relevant here, (i) the document “sets
out the office’s activities,” and (ii) “neither the source of
information nor other circumstances indicate a lack of
trustworthiness.”
The Interagency Report easily fits that bill: It is an
official document prepared by the Interagency Working
Group that sets out the Group’s activities, as statutorily
required by the Disclosure Act. See Pub. L. 105–246,
§ 2(c)(3) (requiring the Interagency Working Group to
“submit a report to Congress” describing all Nazi war
criminal records that it found, “the disposition of such
records, and the activities of the [Interagency Working
Group] and agencies under this section”).
DiBacco, in fact, does not dispute that the Interagency
Report is a “record” of a “public office” that sets out “the
office’s activities” within the meaning of Rule 803(8). She
argues only that the Interagency Report is untrustworthy. But
all that she points to is a statement in the report indicating that
the Interagency Working Group “did not seek unanimous
agreement on a single ‘official’ version of the[]
declassification effort.” Interagency Report, at v.
DiBacco needs to read on. That statement goes on to say
that that any personal or institutional perspectives from Group
members would be included in a separate chapter.
Interagency Report, at v. Nothing in that chapter casts any
16
reasonable doubt on the Report’s account of the agencies’
search efforts. See DiBacco, 983 F. Supp. 2d at 54;
Interagency Report, at 81–101.
The Army’s search effort focused on classified
intelligence and counterintelligence records maintained by
INSCOM. See Interagency Report, at 52. Those files
generally concerned (i) “foreign personnel and
organizations,” (ii) “intelligence and counterintelligence
sources,” and (iii) “counterintelligence security
investigations.” Id. The records consisted of 13,000 reels of
35mm microfilm (holding approximately 1.3 million files),
and approximately 460,000 individual paper files. Id. The
Army created digitized images of the microfilm files, which it
then searched electronically for responsive information using
a database containing the names of Nazi officers and other
individuals connected to Nazi war crimes. Id. at 29, 54. After
reviewing and declassifying the relevant files under the
Disclosure Act, the Army turned them over to the National
Archives. Id. at 54. The Army also conducted a manual
review of its remaining paper files.
Between 2000 and 2001, the Army transferred over
20,000 digitized and paper files to the National Archives.
Interagency Report, at 54. The vast majority of those files
were fully declassified, although some contained limited
redactions. Id. The Army undertook further searches using
additional relevant terms discovered by the Interagency
Working Group and participating agencies. Id. The Army
eventually transferred, in 2005, the original 13,000 reels of
microfilm and a full set of about 1.3 million scanned
microfilm files to the National Archives. Murphy Decl.
¶ 12(d); Interagency Report, at 54. The Army did not retain
any copies of those files. Second Dorris Decl. ¶ 5.
17
Upon receipt, the National Archives “accept[ed] full
responsibility for administering the files both technically and
for reference purposes.” Murphy Decl. ¶ 11. As a
consequence, the National Archives, rather than the Army,
conducted the most recent searches of those files for records
responsive to Oglesby’s FOIA request. In so doing, the
National Archives used a variety of keywords to locate
records concerning or related to General Gehlen. See Murphy
Decl. ¶¶ 13, 15–16. Also included within the scope of the
search were common misspellings of various codenames,
along with pseudonyms and codewords the CIA had
separately created for Gehlen and the Gehlen Organization.
See id. ¶¶ 15–16. The search yielded no records regarding
meetings held at Fort Hunt in the summer of 1945 between
General Gehlen and high-level United States officials,
including George Strong or Allen Dulles. But the search did
locate 2,863 pages of records responsive to other aspects of
Oglesby’s FOIA request, all but 11 pages of which were fully
declassified and have since been provided to DiBacco.
Murphy Decl. ¶ 17–18; Letter from Vincent H. Cohen, Jr.,
Acting United States Attorney for the District of Columbia
(April 1, 2015); Letter from James H. Lesar, Counsel for
Appellants (April 8, 2015).
The Army’s declarations from Bradley Dorris at
INSCOM confirm that the “records most likely responsive to
the FOIA requests would have been in the Investigative
Records Repository at INSCOM[,]” which had been
transferred to the National Archives. First Dorris Decl. ¶ 6.
To be certain, INSCOM had conducted “an exhaustive
search” of its hard copy and electronic files, which turned up
nothing. Id. ¶ 5. In another declaration, Dorris clarified that
“the records which would be responsive to the FOIA requests
would have been in the Investigative Records Repository at
INSCOM,” and that he was “unaware of any other locations
18
of any records related to [Oglesby’s] FOIA request.” Second
Dorris Decl. ¶ 7. The requested documents, Dorris explained,
“were intelligence files,” and so “the only location the
documents would be located would be at INSCOM,” the
Army’s sole “intelligence records repository.” Id.
DiBacco levels five challenges to the Army’s search,
which did not produce certain materials she believes exist and
had hoped to find. But FOIA is not a wishing well; it only
requires a reasonable search for records an agency actually
has.
First, relying on the initial Dorris declaration, DiBacco
asserts that the Army improperly searched only the locations
“most likely” to contain responsive documents, while FOIA
requires it to search all locations “likely” to contain such
documents. DiBacco is correct that “most likely” is not the
relevant metric. See Oglesby I, 920 F.2d at 68 (“[T]he agency
cannot limit its search to only one record system if there are
others that are likely to turn up the information requested.”).
But the point gains her nothing because Dorris clarified that
the only place containing records “responsive to the FOIA
requests would have been in the Investigative Records
Repository at INSCOM,” and that he knew of no other
locations that might contain responsive records. Second
Dorris Decl. ¶ 7. That declaration attests that the Army
applied the proper search standard.
Second, DiBacco argues that the Army’s failure to turn
up documents on secret meetings at Fort Hunt—documents
that DiBacco feels certain must exist—demonstrates the
inadequacy of the Army’s search. We put that losing claim to
bed twenty-five years ago, see Oglesby I, 920 F.2d at 67 n.13,
and age has not improved it. Oglesby’s (now DiBacco’s)
“conviction that the Fort Hunt meeting was of such
19
importance that records must have been created is pure
speculation,” and “[s]uch hypothetical assertions are
insufficient to raise a material question of fact with respect to
the adequacy of the agency’s search.” Id.
DiBacco maintains that this time is different because the
CIA has disclosed the Gehlen relationship and because “new
evidence has emerged.” Appellants’ Br. 37. Those are not
differences of any consequence. That the CIA has now
acknowledged the Gehlen relationship does nothing to show
that meetings at Fort Hunt ever took place. Moreover,
DiBacco’s “new evidence”—two Washington Post articles—
establishes only that prisoners were held and interrogated at
Fort Hunt. The articles do not even hint at secret meetings.
Absent a more substantial showing, the Army’s “failure to
turn up a particular document, or mere speculation that as yet
uncovered documents might exist, does not undermine the
determination that the agency conducted an adequate search
for the requested records.” Wilbur v. CIA, 355 F.3d 675, 678
(D.C. Cir. 2004) (per curiam).
Third, DiBacco assails the adequacy of the Army’s
search for records conducted before the CIA disclosed its
relationship with Gehlen. That argument is moot, long since
overtaken by the comprehensive searches undertaken under
the Disclosure Act. Those searches have looked further and
wider than FOIA requires. The declarations from the Army
and the National Archives describe searches of Army records
reasonably calculated to discover all documents responsive to
Oglesby’s request. That additional Army documents were
found at the National Archives through those efforts further
substantiates the search’s adequacy. And adequacy—not
perfection—is the standard that FOIA sets. See Oglesby I,
920 F.2d at 68. Beyond that, DiBacco provides no reason
why the Army’s decades-old search would be germane to any
20
remaining material issue, so we need not address that
question.
Fourth, DiBacco cites a book on General Gehlen, written
by Mary Ellen Reese, in which the author claimed to have
filed FOIA requests yielding “well over a thousand
documents” about Gehlen. Appellants’ Br. 48. That figure,
DiBacco urges, far exceeds the number of documents the
Army disclosed in response to Oglesby’s FOIA request.
Oglesby made that precise argument in Oglesby II, and
we held that further explication of the Army’s search was
needed. 79 F.3d at 1185. But a lot has changed in the
intervening nineteen years. Most relevantly, following
Oglesby’s success in the second appeal, the Army released
9,000 additional pages of responsive material to Oglesby,
including thousands of pages related to Gehlen. And the
Army has since provided 2,863 additional pages of responsive
documents to DiBacco. DiBacco, for her part, has provided
no further information on Reese’s request—such as its scope
or the number of pages received—or any other basis for
concluding that the Army is holding back documents.
Fifth and finally, DiBacco suggests two additional search
terms that, in her view, the Army should have used: “GO,” an
abbreviation for the “Gehlen Organization,” and “PO Box
1142,” a codename for Fort Hunt. Appellants’ Br. 48–49.
But it is undisputed that the agencies searched for records
pertaining to the Gehlen Organization and employed relevant
codenames. The Army’s burden was to show that its search
efforts were reasonable and logically organized to uncover
relevant documents; it need not knock down every search
design advanced by every requester. See SafeCard Services,
Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“When a
plaintiff questions the adequacy of the search an agency made
21
in order to satisfy its FOIA request, the factual question it
raises is whether the search was reasonably calculated to
discover the requested documents, not whether it actually
uncovered every document extant.”).
The Army’s Transfer of Documents
DiBacco contends that we cannot affirm summary
judgment for the Army, no matter how thorough its search,
because its transfer of documents to the National Archives
under the Disclosure Act casts doubt on its motives. In
DiBacco’s view, there is a genuine dispute over whether the
Army transferred documents to avoid disclosing them to
Oglesby. That argument beggars belief.
FOIA generally obligates covered agencies to disclose
their records, unless they are exempted. But “possession or
control is a prerequisite to FOIA disclosure duties[.]”
Kissinger v. Reporters Committee for Freedom of the Press,
445 U.S. 136, 152 (1980). Accordingly, when an agency does
not possess or control the records a requester seeks, the
agency’s non-disclosure does not violate FOIA because it has
not “withheld” anything. Id. at 150. “[A]n agency has no
duty to retrieve and release documents it once possessed but
that it legitimately disposed of prior to the date a FOIA
request was received.” Chambers v. Department of Interior,
568 F.3d 998, 1004 (D.C. Cir. 2009) (quoting McGehee v.
CIA, 697 F.2d 1095, 1103 n.33 (D.C. Cir. 1983)).
This case, though, is a bit more complicated because the
Army transferred its documents to the National Archives after
receiving Oglesby’s FOIA request. The general rule is that an
agency may not avoid a FOIA request by intentionally ridding
itself of a requested document. Chambers, 568 F.3d at 1004
(“[A]n agency is not shielded from liability if it intentionally
22
transfers or destroys a document after it has been requested
under FOIA[.]”). The critical issue, then, in a dispute over a
document that an agency no longer has, is the agency’s
motivation for disposing of or transferring that document. If
“the agency is no longer in possession of the document, for a
reason that is not itself suspect,” FOIA does not compel the
agency “to take further action in order to produce” that
document. SafeCard, 926 F.2d at 1201 (emphasis added).
There is no genuine dispute that the Army satisfied that
standard. To begin with, the Army’s transfer of documents to
the National Archives was done for a proper and eminently
sensible reason: to fulfill the Army’s obligations under the
Disclosure Act to disclose all relevant materials and “make
them available to the public at the National Archives[.]” Pub.
L. No. 105-246, § 2(c)(1). That is the antithesis of a suspect
motive; following the law is exactly what agencies are
supposed to do.
Beyond that, the Army, by complying with the
Disclosure Act, already had to declassify and disclose most of
the records that DiBacco seeks. Unlike FOIA, the Disclosure
Act mandated wholesale disclosure by the agency itself, with
no general exemption for classified information and without
any request having to be filed or potentially limiting the scope
of disclosure. Indeed, the whole point of the Disclosure Act
was to spur federal agencies themselves, regardless of any
individual request, to declassify and publicly release decades-
old classified records that had been kept secret on national
security and foreign policy grounds. See Interagency Report,
at 1; Pub. L. No. 105-246, § 3(a) (defining “‘Nazi war
criminal records’” to “mean[] [certain] classified records or
portions of records”) (emphasis added); id. § 3(b)(1)
(requiring the Interagency Working Group to “release in their
23
entirety Nazi war criminal records that are described” in the
statute, subject to certain exemptions).
The Army’s transfer thus bears no colorable resemblance
to FOIA-evasion cases, where an agency tries to thwart
disclosure by intentionally moving or destroying responsive
documents. See, e.g., Judicial Watch, Inc. v. Department of
Commerce, 34 F. Supp. 2d 28, 41 (D.D.C. 1998) (designating
discovery on whether agency illegally destroyed or discarded
responsive information); cf. Chambers, 568 F.3d at 1005
(triable issue of fact on whether agency intentionally
destroyed records responsive to a Privacy Act request). Quite
the opposite, as a result of the Disclosure Act’s operation, the
National Archives has a cache of 1.3 million Army files that it
thoroughly searched for records responsive to Oglesby’s
FOIA request, netting an additional 2,863 pages of relevant
Army records. Murphy Decl. ¶¶ 17–18. The agency has
made those records available for public inspection, and
DiBacco received copies of them while this appeal was
pending. Id.; Letter from Vincent H. Cohen, Jr., Acting
United States Attorney for the District of Columbia (April 1,
2015); Letter from James H. Lesar, Counsel for Appellants
(April 8, 2015).
DiBacco also attacks the Army’s declarations discussing
the transfer and search of documents under the Disclosure
Act. She asserts that a discrepancy in the dates attributed to
the transfers casts doubt on the declarants’ trustworthiness.
DiBacco is making a mountain out of a molehill. The
Army’s declarant, Bradley Dorris, states in one declaration
that the Army transferred all World War II files to the
National Archives “on or about 26 and 29 September 2000,”
First Dorris Decl. ¶ 4, while in another he indicates a transfer
date of “on or about 23 April 2001,” Second Dorris Decl. ¶ 5.
24
The National Archives’ declarant, Martha Murphy, explains
that the transfers were completed in phases, with transfers
occurring in September 2000, summer 2001, and 2005.
Murphy Decl. ¶ 12. The first two dates Murphy provides
coincide with the two dates the Dorris declarations reference,
which suggests that the Dorris declarations were largely
accurate but omitted the last date. That is insufficient to
suggest bad faith or dissembling by Dorris or the Army.
More to the point, that discrepancy has nothing to do with
the Army’s motivation for the document transfer. What
matters is that, under the Disclosure Act, the Army transferred
all of its potentially responsive files to the National Archives
and did not retain any copies. The Interagency Report
confirms as much. See Interagency Report, at 54. DiBacco,
for her part, is silent as to how publicly available documents
at the National Archives—copies of which have always been
offered to her for a fee and which she has now in fact
received—could plausibly be considered improperly withheld.
Trying another tack, DiBacco argues, for the first time in
her reply brief, that the Army violated an Executive Order by
failing to sufficiently declassify information of permanent
historical value before transferring the documents to the
National Archives. We do not ordinarily consider arguments
raised for the first time in a reply brief, and we see no good
reason for doing so here. See Abdullah v. Obama, 753 F.3d
193, 199 (D.C. Cir. 2014).
At bottom, DiBacco’s main concern is that the transfer
allowed the Army to circumvent the fee waiver it granted
Oglesby nearly three decades ago. But the Army has
assumed, and accordingly so do we, that Oglesby’s fee waiver
extends to DiBacco, and, following oral argument, the Army
provided her with free copies of the 2,863 pages of Army
25
records identified as responsive by the National Archives.
See supra p. 23. The issue is therefore moot.
That, however, is not the last chapter on those recently
released documents. Some were redacted or indicated that
pages had been removed, with no accompanying justification
for that withholding of information. Letter from James H.
Lesar, at 2–3 & nn.1–2. The National Archives’ declaration
confirms that some of the documents had redacted
information that remains classified. Murphy Decl. ¶ 17a
nn.2–3. We accordingly remand to allow the parties to create
a record and the district court to decide in the first instance the
narrow question of whether those withholdings were
permissible under FOIA.
Claims Against the CIA
DiBacco levels attacks against the CIA’s search for and
withholding of responsive records. None has merit.
The CIA’s Search for Records
Like the Army, the CIA maintains that its Disclosure Act
search efforts were reasonably calculated to locate documents
responsive to Oglesby’s FOIA request. The CIA filed the
Interagency Report and four declarations from Martha Lutz,
Chief of its Litigation Support Unit, detailing those efforts.
First Lutz Declaration (Dec. 14, 2012), J.A. 709–749; Second
Lutz Declaration (March 21, 2013), J.A. 1055–1083; Third
Lutz Declaration (May 10, 2013), J.A. 1121–1126; Fourth
Lutz Declaration (June 20, 2013), J.A. 1147–1156.
The CIA instructed all of its directorates to search for
relevant documents, using name and codeword searches. First
Lutz Decl. ¶¶ 14–15. With respect to documents concerning
26
Gehlen and his organization, the CIA searched for files
retrievable by name, codewords, aliases, and cryptonyms. Id.
The CIA’s searches included operational files exempt from
FOIA.
The CIA initially sought and disclosed records “only if
they contained either direct information about war crimes or
information suggesting that there were grounds to believe that
the subject was involved in war crimes, acts of persecution, or
looting.” Interagency Report, at 47. That approach led to the
declassification and release of approximately 50,000 pages of
documents, many of which were redacted. Id. at 49.
In 2005, the CIA adopted the Interagency Working
Group’s broader interpretation of the Disclosure Act, and
accordingly “[d]eclassif[ied] and release[d] information on
individuals connected to the Nazis whether war criminals or
not,” “[d]eclassif[ied] and release[d] operational project files
where Nazis were involved,” and “[u]ndert[ook] additional
searches that the [Interagency Working Group] historians or
CIA thought necessary.” Interagency Report, at 50. As a
result, the agency narrowed redactions in 47,400 pages of the
previously released documents, and released over 65,000 new
pages. Id. Of relevance here, 2,100 of those pages related to
General Gehlen, and the CIA authorized release of another
2,100-page Army file concerning Gehlen. First Lutz Decl.
¶ 13. Continuing its efforts, in May 2012, the CIA provided
DiBacco’s counsel with seven discs containing all CIA
records released under the Disclosure Act, with information
explaining how the records were organized and where records
relating to Gehlen and the Gehlen Organization’s relationship
with the United States could be located. Id. ¶ 12.
Those efforts discharged the CIA’s FOIA duty to
undertake reasonable search efforts. “[A] search need not be
27
perfect, only adequate, and adequacy is measured by the
reasonableness of the effort in light of the specific request.”
Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). The
Lutz declarations adequately explain the congruence between
the CIA’s Disclosure Act search and Oglesby’s FOIA request.
See Second Lutz Decl. ¶¶ 3–4. Lutz identified in detail the
locations searched within the CIA, expressly noting that the
search included all directorates and even encompassed
operational files not subject to FOIA. Id. ¶¶ 6–7.
DiBacco raises a number of specific challenges to the
adequacy of the CIA’s search, but none holds water.
First, DiBacco’s arguments regarding the absence of
documents concerning secret meetings at Fort Hunt and the
failure to use her preferred search terms fail here, just as they
did when leveled against the Army. See supra pp. 18–21.
Second, DiBacco points to a December 2000 status
report, in which the CIA anticipated locating documents
potentially responsive to Oglesby’s request that exceeded the
Disclosure Act’s scope. Lutz explained, however, that the
statement was based on the CIA’s pre-2005 view that the
Disclosure Act did not encompass records pertaining to
General Gehlen. Second Lutz Decl. ¶ 4. Five years after
filing that status report, the CIA adopted a more expansive
view of the Disclosure Act and, under that standard, it
reviewed, declassified, and disclosed information on all Nazis
(rather than just war criminals), and undertook additional
searches that were equivalent to or broader than what FOIA
requires. Id. As a consequence, “all Gehlen related records
responsive to Oglesby’s request fell within the scope of [the
Disclosure Act] and all were released in whole or in part
under the [Act] and provided to Plaintiffs.” Id.
28
Third, DiBacco asserts that there is a discrepancy
between the number of responsive documents the CIA
predicted in 2000–2001 that it would disclose and what it
eventually released. In December 2000 and January 2001, the
CIA reported finding “approximately 251 boxes of material,
and 2,901 folders” with potentially responsive documents,
and that, if the boxes were full, they would likely contain a
total of “anywhere between 251,000 and 775,000 pages” of
documents. Defendants’ Status Report 1–2, J.A. 622–623; Tr.
of Hearing 4:15–23, J.A. 630.
DiBacco seizes on the gap between that prediction and
the roughly 115,000 pages the CIA ultimately released. But
that differential is no surprise. The CIA based its estimated
page count in 2000–2001 on the volume of each box—one
cubic foot—and an assumption that all were full of documents
responsive to Oglesby’s request. The boxes had not yet been
searched. That the CIA’s later search turned up less than its
back-of-the-napkin estimate, which was based on figures and
assumptions untethered to the actual contents of the
documents, does not impugn the agency’s search.
The CIA’s Exemption Claims
The CIA redacted protected national security information
from approximately 475 pages of its disclosure, pursuant to
Exemptions 1 and 3, as detailed in its Vaughn index. See First
Lutz Decl., Attachment. DiBacco presses global attacks on
the use of both exemptions. But neither challenge holds up.
“An agency withholding responsive documents from a
FOIA release bears the burden of proving the applicability of
claimed exemptions[,]” which it typically does “by affidavit.”
American Civil Liberties Union v. Department of Defense,
628 F.3d 612, 619 (D.C. Cir. 2011). We “review the district
29
court’s decision on the adequacy of the agency’s showing de
novo,” and “must accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the
disputed record.” Id. (internal quotation marks omitted).
Summary judgment is warranted based on the agency’s
affidavit if it “describes the justifications for withholding the
information with specific detail, demonstrates that the
information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith[.]” Id.
FOIA Exemption 1 excludes from the agency’s general
disclosure obligation national defense or foreign policy
records “properly classified pursuant to [an] Executive
order[.]” 5 U.S.C. § 552(b)(1). In making the Exemption 1
withholdings in this case, the CIA relied on President
Clinton’s Executive Order 12958, as amended by President
Bush, which was in effect at the time the classifications were
made in 2005–2007. See Second Lutz Decl. ¶ 8 & n.6; Exec.
Order No. 12958, 60 Fed. Reg. 19,825 (April 17, 1995),
amended by Exec. Order No. 13292, 68 Fed. Reg. 15,315
(March 25, 2003). DiBacco maintains that President Obama’s
Executive Order currently in effect—Executive Order
13526—governs. 75 Fed. Reg. 707 (Dec. 29, 2009).
The CIA has it right. A district court may allow an
agency to apply a superseding Executive Order during
pending FOIA litigation if the agency so requests. Campbell
v. Department of Justice, 164 F.3d 20, 29 (D.C. Cir. 1998).
But “absent [such a request,] the district court may not require
the agency to apply the new order; instead, the court must
evaluate the agency’s decision under the executive order in
force at the time the classification was made.” Id. A court
will compel an agency to revisit its classifications only if the
30
superseding Executive Order “calls prior classification
decisions” under the earlier order “into question.” Id.
Nothing in the Obama Executive Order calls the CIA’s
classification decisions into question. Quite the opposite, the
Obama Order explicitly defines properly classified
information to include information classified under prior
Executive Orders, see Exec. Order 13526, § 6.1(i), and it
“does not contain any provision that requires an agency to
reconsider classification decisions in pending FOIA
litigation,” Campbell, 164 F.3d at 30. To be sure, as DiBacco
observes, the Obama Order significantly changes the
automatic declassification process for information that is
more than fifty years old. See Exec. Order 13526, § 3.3(h)(1).
But what matters for purposes of reviewing the CIA’s
classification decisions is that “nothing in the Order requires
the district court to apply the new standards in a pending
FOIA action.” Campbell, 164 F.3d at 30.
DiBacco separately argues that the withheld documents
lack markings required to properly classify documents under
the Clinton/Bush Order. That too is wrong. The documents
at issue were classified decades ago, with the markings
required under the then-governing Executive Orders. See
Fourth Lutz Decl. ¶¶ 8–9 & n.9. That is all the Clinton/Bush
Order requires. Exec. Order 12958, amended by Exec. Order
13292, § 1.6(f) (“Information assigned a level of classification
under this or predecessor orders shall be considered as
classified at that level of classification despite the omission of
other required markings.”).
DiBacco also challenges the CIA’s reliance on
Exemption 3, which generally excludes from disclosure
matters that are “specifically exempted from disclosure by
statute.” 5 U.S.C. § 552(b)(3). The CIA relied on the
31
National Security Act of 1947, 50 U.S.C. §§ 3001 et seq., to
justify withholding information that would reveal intelligence
sources and methods. See First Lutz Decl. ¶¶ 30–32, 35–51.
“Exemption 3 differs from other FOIA exemptions in that
its applicability depends less on the detailed factual contents
of specific documents; the sole issue for decision is the
existence of a relevant statute and the inclusion of withheld
material within the statute’s coverage.” Morley v. CIA, 508
F.3d 1108, 1126 (D.C. Cir. 2007) (internal quotation marks
omitted). The National Security Act provision invoked by the
CIA provides that “[t]he Director of National Intelligence
shall protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 3024(i)(1).
DiBacco does not dispute, nor could she, that Section
3024(i)(1) is a valid Exemption 3 statute. Sims, 471 U.S. at
167. Nor does DiBacco challenge the CIA’s determination
that the withheld material contains “intelligence sources and
methods” within the National Security Act’s coverage.
Instead, DiBacco focuses on language in that same
statutory subsection providing that “[t]he Director [of
National Intelligence] may only delegate a duty or authority
given the Director under this subsection to the Principal
Deputy Director of National Intelligence.” 50 U.S.C.
§ 3024(i)(3). That language was added by the Intelligence
Reform and Terrorism Prevention Act of 2004, Pub. L. No.
108-458, § 102(A)(i)(1), 118 Stat. 3638. Prior to 2004, the
Director of Central Intelligence bore responsibility for
protecting intelligence sources and methods, and had the
authority to invoke the National Security Act to prevent the
unauthorized disclosure of such information under FOIA. See
Sims, 471 U.S. at 167.
32
DiBacco argues that the 2004 amendment stripped the
CIA of that power, at least absent an express authorization
from the Director of National Intelligence. Although
DiBacco’s reading of the amended statute is not entirely clear,
she does concede that the Director of National Intelligence
may delegate the authority to protect intelligence sources and
methods to the Director of the CIA. Oral Arg. Rec. 13:20–
13:30. She asserts, however, that the delegation must be done
on a case-by-case basis and that the absence of such a
particularized delegation here dooms the CIA’s Exemption 3
claims. Id. at 13:30–15:50.
DiBacco’s argument misunderstands the governing
statutory scheme. First, even if the Director of the CIA needs
authorization to protect intelligence sources and methods
from unauthorized disclosure, that authorization is already in
place. Both the President and the Director of National
Intelligence have provided it. In Executive Order 12333, as
amended, President Obama ordered the Director of the CIA to
“[p]rotect intelligence and intelligence sources, methods and
activities from unauthorized disclosure in accordance with
guidance from the Director [of National Intelligence].” Exec.
Order 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981), amended
by Exec. Order 13470, § 1.6(d), 73 Fed. Reg. 45,325, 45,332
(July 30, 2008). Pursuant to that Executive Order and the
National Security Act, the Director of National Intelligence
has issued such guidance, ordering heads of intelligence
agencies—such as the Director of the CIA—to “[p]rotect
national intelligence and intelligence sources, methods and
activities from unauthorized disclosure[.]” Intelligence
Community Directive 700, at 3 (June 7, 2012), available at
http://www.dni.gov/files/documents/ICD/ICD_700.pdf.
Second, statutory language must always be read “in [its]
context,” and that context supports the ability of the Director
33
of National Intelligence to delegate to the CIA Director
subject to the former’s guidance. King v. Burwell, No. 14-
114, slip op. at 15 (U.S. June 25, 2015) (internal quotation
marks omitted); see Association of Civilian Technicians, Inc.
v. United States, 603 F.3d 989, 992 (D.C. Cir. 2010)
(“[W]ords are to be read in the context in which they are used
and in the broader context of the statutory scheme.”). The
paragraph that precedes the delegation limitation mandates
that “the Director of National Intelligence shall establish and
implement guidelines for the intelligence community”
addressing, among other things, the “[c]lassification of
information” and “[a]ccess to and dissemination of
intelligence,” “[c]onsistent with” the Director’s duty to
protect intelligence sources and methods. 50 U.S.C.
§ 3024(i)(2)(A)–(B). The statute thus expressly envisions the
National Intelligence Director giving guidance to intelligence
agencies, which necessarily is guidance for those agencies to
use.
The Director of National Intelligence has exercised that
authority. Intelligence Community Directive 700 establishes
the intelligence community’s “policy for the protection of
national intelligence” and provides a “framework” for
oversight of classified information and “protection of national
intelligence and intelligence sources, methods, and activities.”
Intelligence Community Directive 700, at 1. By ordering the
heads of components of the intelligence community to
“[p]rotect national intelligence and intelligence sources,
methods and activities from unauthorized disclosure,” id. at 3,
the Director of National Intelligence exercised his power to
issue guidelines in a manner “consistent with” his statutory
duty, 50 U.S.C. § 3024(i)(2).
Third, the National Security Act’s structuring of the
intelligence community likewise confirms the authority of the
34
Director of National Intelligence to provide rules and
guidance for intelligence agencies to implement on a case-by-
case basis. The Act provides that, “[s]ubject to the authority,
direction, and control of the President,” the Director of
National Intelligence “serve[s] as head of the intelligence
community” and “oversee[s] and direct[s] the implementation
of the National Intelligence Program,” 50 U.S.C. § 3023(b),
which consists of “all programs, projects, and activities of the
intelligence community,” id. § 3003(6). The statute thus
expressly contemplates that the Director of National
Intelligence, under the President’s direction, will issue general
directives that control the manner in which the intelligence
community as a whole carries out its mission.
Underscoring the point, the provision of the National
Security Act listing the Director of National Intelligence’s
“[r]esponsibilities and authorities” is chock full of provisions
tasking the Director with formulating and issuing guidance to
govern the intelligence community writ large. 50 U.S.C.
§ 3024. Notably absent are provisions suggesting that the
Director must—or even feasibly could—have his fingers
perpetually in the day-in-and-day-out operations of each and
every one of the sixteen components of the intelligence
community. 4 To the contrary, the National Security Act
assigns the CIA Director responsibility for the day-to-day
conduct of the agency’s mission. See 50 U.S.C. § 3036(b)–
(f).
Finally, we would require far more explicit statutory
direction before concluding that Congress meant to saddle the
highest-level official in the intelligence community (other
4
See Office of the Director of National Intelligence, Members of
the IC, http://www.dni.gov/index.php/intelligence-community/
members-of-the-ic (last visited July 24, 2015).
35
than the President) with such micromanagement, or meant to
so ossify the ability of the intelligence community to protect
its most vital intelligence information. DiBacco’s
interpretation “overlooks the practical necessities of modern
intelligence gathering,” and would improperly narrow the
Director of National Intelligence’s “very broad authority to
protect all sources of intelligence information from
disclosure.” Sims, 471 U.S. at 168–169. Nothing in the 2004
amendment to the National Security Act indicates a
congressional intent to hamstring the Director in that fashion. 5
Further, the overall scheme for protecting such sensitive
information leaves it to the President to dictate the duties (in
addition to those statutorily enumerated) of the Director of
National Intelligence, and the President and the Director of
National Intelligence do the same for the Director of the CIA.
See 50 U.S.C. § 3024(f)(8) (“The Director of National
Intelligence shall perform such other functions as the
President may direct.”); id. § 3036(d)(4) (The Director of the
CIA’s statutory responsibilities include “such other functions
and duties related to intelligence affecting the national
security as the President or the Director of National
Intelligence may direct.”).
Executive Order 12333, in turn, requires the Director of
the CIA to protect intelligence sources and methods from
unauthorized disclosure in accordance with guidance issued
5
We have affirmed the CIA’s exercise of the authority to prevent
unauthorized disclosure of intelligence sources and methods
following the 2004 amendment to the National Security Act. See
American Civil Liberties Union, 628 F.3d at 625–626; Moore v.
CIA, 666 F.3d 1330, 1331 n.2 (D.C. Cir. 2011); Larson, 565 F.3d at
865. Other courts have done the same. See American Civil
Liberties Union v. Department of Justice, 681 F.3d 61, 72–75 (2d
Cir. 2012); Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir. 2007).
36
by the Director of National Intelligence. Exec. Order 12333,
amended by Exec. Order 13470, § 1.6(d). The Order also
requires the Director of National Intelligence to “ensure that
programs are developed to protect, intelligence sources,
methods, and activities from unauthorized disclosure.” Id.
§ 1.3(b)(8). Intelligence Community Directive 700 provides
the guidance contemplated by Executive Order 12333, and
likewise gives the Director of the CIA the duty to protect
intelligence sources and methods from unauthorized
disclosure. The CIA Director’s exercise of that authority
consistent with the National Intelligence Director’s guidance
falls naturally within the “other functions and duties related to
intelligence” that the President or the Director of National
Intelligence may grant the Director of the CIA under the
National Security Act. 50 U.S.C. § 3036(d)(4).
Accordingly, when read in context, the statutory
limitation on delegation on which DiBacco relies, 50 U.S.C.
§ 3024(i)(3), does not unravel either the President’s or the
Director of National Intelligence’s authority to assign
responsibility to intelligence agency heads to protect
intelligence sources and methods. Instead, the anti-delegation
provision means that the Director of National Intelligence
must hold close those critical responsibilities for
superintending and guiding the work of members of the
intelligence community. The Director has done that through
the guidance issued, and DiBacco does not dispute that the
CIA made its withholding decisions in this case under the
framework that guidance provides.
DiBacco’s Motion to Compel
DiBacco makes a glancing challenge to the district
court’s denial of her motion to compel disclosure of the
Army’s and CIA’s classified declarations referenced in their
37
summary-judgment papers filed nearly two decades ago.
DiBacco’s argument focuses on when a district court may rely
upon such declarations to decide FOIA exemption claims.
See Plaintiffs’ Motion for an Order Compelling Defendants
Central Intelligence Agency and the Department of the Army
to Disclose Ex Parte Declarations 4–6 (April 25, 2013), ECF
No. 249.
But the district court never ruled on the agencies’ earlier
motion for summary judgment because they withdrew it after
the 1998 passage of the Disclosure Act. Those declarations
thus played no role in resolving that summary judgment
motion, nor did the district court rely on them in deciding any
other issue. On top of that, the district court concluded that
the unclassified declarations filed in the case were sufficient
to enable DiBacco to oppose, and the court to resolve, the
agencies’ current motion for summary judgment. DiBacco,
983 F. Supp. 2d at 53. DiBacco has not challenged that
conclusion. Nor has she provided any reason to disturb the
district court’s exercise of its “broad discretion regarding
whether to conduct in camera review,” let alone to second-
guess its refusal to disclose classified declarations that it
appropriately declined to review. Larson, 565 F.3d at 870.
III
Conclusion
We affirm the district court’s grant of summary judgment
to the Army and CIA with respect to (i) the Army’s transfer of
documents to the National Archives, (ii) both agencies’
searches for responsive documents, and (iii) the CIA’s
withholding of information under Exemptions 1 and 3. Our
remand is limited to issues arising from the Army’s release to
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DiBacco during the appeal of responsive but redacted Army
documents that had been held by the National Archives.
So ordered.