Smith v. Central Intelligence Agency , 246 F. Supp. 3d 117 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GRANT F. SMITH, )
)
Plaintiff, )
)
v. ) Case No. 15-cv-224 (TSC)
)
CENTRAL INTELLIGENCE AGENCY, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Grant F. Smith, proceeding pro se, seeks records related to alleged uranium
diversion from the Nuclear Materials and Equipment Corporation (“NUMEC”) to Israel. He
challenges the CIA’s response to his Freedom of Information Act (“FOIA”) request. The CIA
moved for summary judgment, and Smith then moved to amend his Complaint to add the
Department of Justice as a Defendant. For the reasons set forth below, Defendant’s motion for
summary judgment will be GRANTED and Plaintiff’s motion to amend the Complaint will be
DENIED.
I. BACKGROUND
Plaintiff is a public interest researcher and founder of the Institute for Research: Middle
Eastern Policy, Inc. (Compl. ¶ 4). On May 13, 2010, he submitted a FOIA request to the CIA for
“declassification and release of all cross referenced CIA files related to uranium diversion from the
Nuclear Materials and Equipment Corporation (NUMEC) to Israel.” (Id. ¶ 16; Ex. 6). The CIA
confirmed receipt of Plaintiff’s request on September 10, 2010, informing him that the CIA
Information Act (“the Act”), 50 U.S.C. § 431, exempts CIA operational files from search, review,
publication, and disclosure requirements of FOIA. (Compl. ¶ 17; Ex. 7). The CIA issued a final
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response on August 28, 2013, informing Plaintiff that it had located responsive material but was
withholding it in full pursuant to FOIA exemptions 1 and 3. (Compl. ¶ 18; Ex. 8). The CIA
released to Plaintiff four documents, totaling eleven pages, that were part of database of previously
released information and that it believed were responsive to Plaintiff’s request. (Ex. 8). Plaintiff
filed an administrative appeal of the CIA’s withholding, which the CIA’s Agency Release Panel
denied on March 28, 2014. (Compl. ¶ 20; Wilson Decl. ¶ 21). Plaintiff then filed suit in this court.
Several months later, after the Interagency Security Classification Appeals Panel (“ISCAP”)
overturned a number of CIA classification determinations, the CIA conducted a supplemental
classification review and search, and—after consulting with the FBI, State Department, and
Department of Energy—released sixteen redacted documents, and withheld one document, on the
basis of FOIA exemptions 1, 3, 6, 7(C), and 7(E). (Wilson Decl. ¶ 28-29; Hardy Decl. ¶ 4; Hackett
Decl. ¶ 14; Stein Decl. ¶ 8).
II. LEGAL STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). “FOIA cases typically and appropriately are decided on motions for
summary judgment.” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (citation
omitted). The district court conducts a de novo review of the government’s decision to withhold
requested documents under any of FOIA’s specific statutory exemptions. See 5 U.S.C. §
552(a)(4)(B). The burden is on the government agency to show that nondisclosed, requested
material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). In cases involving the
applicability of exemptions and the adequacy of an agency’s search, summary judgment may be
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based solely on information provided in the agency’s supporting declarations. See, e.g., ACLU v.
U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State,
257 F.3d 828, 838 (D.C. Cir. 2001). In ACLU, the D.C. Circuit wrote:
If an agency’s affidavit 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, then summary judgment is warranted on the basis of
the affidavit alone.
ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v. Dep’t of State, 565 F.3d 857,
862 (D.C. Cir. 2009)) (internal quotation marks omitted). However, a motion for summary
judgment should be granted in favor of the FOIA requester where “an agency seeks to protect
material which, even on the agency’s version of the facts, falls outside the proffered exemption.”
Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (internal quotation marks
omitted) (quoting Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir.
1992)).
III. ANALYSIS
A. Summary Judgment
i. Adequacy of CIA’s search
The court finds that the CIA conducted an adequate search. It determined that the
Directorate of Intelligence (“DI”), Directorate of the CIA (“DIR”) Area, and National Clandestine
Service (“NCS”) were reasonably likely to possess records responsive to Plaintiff’s request.1
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At the time of Plaintiff’s request, all CIA components were contained within the following five
directorates: the National Clandestine Service, the Directorate of Intelligence, the Directorate of
Science & Technology, the Directorate of Support, and the Directorate of the CIA Area. (Wilson
Decl. ¶ 7). NCS and DI have since been renamed the Directorate of Operations and Directorate of
Support, respectively, and a new Directorate has been created, but the CIA’s filings and the court’s
opinion refer to the names applicable at the time of the request and its processing. (Id. at 8; Mot. for
Summ. J. at 6 n.1).
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(Wilson Decl. ¶ 23). Each division conducted a search of its record system. The DI used search
terms including “NUMEC,” “Nuclear Materials and Equipment Corporation,” “Israel,” and
“uranium diversion” to search three electronic databases: (1) a database of “documents which have
been scanned into various case types (FOIA, Privacy Act, Executive Order Mandatory
Declassification Review, etc.),” which includes “all documents types, from disseminated
intelligence to analysis, to Director-level correspondence;” (2) a web-based research, analysis, and
collaboration database containing published DI work and NCS intelligence cables; and (3) a
database of automated inventory of records retired to the Agency Archives and Records Center. (Id.
¶ 24). The DIR Area conducted a search using similar search terms of two electronic databases: one
that “serves as the official action tracking system for the Director of the Central Intelligence
Agency,” and is used to “record and disseminate all external taskings [sic] received by the agency,”
as well a database of its records sent to the Agency Archives and Records Center. (Id. ¶ 25). The
NCS conducted a search using similar terms in the database that contains “documents which have
been scanned into various case types.” (Id. ¶ 26). NCS determined that any other responsive
records would be located in operational files, and it did not search those files. The searches resulted
in a total of twenty-one documents, which the CIA reviewed, releasing four and withholding
seventeen. (Id. ¶ 27).
Plaintiff challenges the adequacy of the CIA’s search based on its decision not to search its
operational files.2 The CIA Information Act, 50 U.S.C. § 3141, exempts certain CIA operational
2
Plaintiff also argues that the CIA should have used additional search terms in searching its non-
exempt files, including “Zalman Shapiro,” “Rafi Eitan,” and “Dimona.” (P. Resp. to Def. Statement
of Mat. Facts, ECF No. 18-2 at 3-4). But a FOIA requester must “reasonably describe[]” the
records sought, 5 U.S.C. § 552(a)(3)(A), and the request must “enable[] a professional employee of
the agency who [i]s familiar with the subject area of the request to locate the record with a
reasonable amount of effort.” Truitt v. Dep’t of State, 897 F.2d 540, 548 n.36 (D.C. Cir. 1990). If
Plaintiff specifically wanted records containing those additional search terms, it was Plaintiff’s
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files from FOIA’s search and disclosure requirements. 50 U.S.C. § 3141(a). The Act’s definitions
of “operational files” includes “files of the National Clandestine Service which document the
conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison
arrangements or information exchanges with foreign governments or their intelligence or security
services.” Id. § 3141(b). If a requester challenges the CIA’s invocation of the Act and decision not
to search operational files, the CIA can meet its burden under FOIA “by demonstrating to the court
by sworn written submission that exempted operational files likely to contain responsive records
currently perform the functions set forth” in subsection (b). Id. § 3141(f)(4)(A).
The CIA’s declaration states that the operational files likely to contain records responsive to
Plaintiff’s request involve functions including “documenting the conduct of foreign intelligence
operations.” (Wilson Decl. ¶ 35). The agency’s decision not to search those files is therefore
clearly within the CIA Information Act’s exemption of operational files as defined in the Act.
However, the Act does not apply in three circumstances: (1) when a requester seeks information on
themselves pursuant to FOIA or the Privacy Act, (2) when a requester seeks information concerning
“any special activity the existence of which is not exempt from disclosure under” FOIA, and (3)
when a requester seeks information concerning “the specific subject matter of an investigation by
the congressional intelligence committees, the Intelligence Oversight Board, the Department of
Justice (“DOJ”), 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.” 50 U.S.C. § 3141(c).
responsibility to list them in his request. The fact that he did not does not render the search
inadequate.
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The DC Circuit has held that in order to meet the third exception, “three questions must be
answered in the affirmative.” Morley v. C.I.A., 508 F.3d 1108, 1116 (D.C. Cir. 2007). First,
whether the statute covers the investigating entity; second, whether the information requested is
“the specific subject matter of [the] investigation,” and third, whether the investigation concerns
“impropriety” or “misconduct” by intelligence agencies. Id. at 1116-18. The First Circuit has
further held that “a congressional investigation that touches on CIA conduct in a particular incident
or region, standing alone, is not sufficient to warrant the release of all CIA documents anent that
incident or region;” rather, “the congressional investigation and the documents sought must
specifically relate to CIA wrongdoing.” Sullivan v. C.I.A., 992 F.2d 1249, 1254-55 (1st Cir. 1993).
Plaintiff contends that the information he seeks is exempt under section 3141(c) because it relates to
investigations conducted by the United States Department of Justice, the General Accounting
Office, and the President’s National Security Advisor. (Opposition at 10).
Plaintiff has submitted a Department of Justice memorandum, dated April 22, 1976, setting
forth the Attorney General’s views on “whether the jurisdiction of the Joint Atomic Energy
Committee is exclusive” and “whether the statute of limitations has run on any possible criminal
offenses arising out of the discrepancy in nuclear materials at the Nuclear Materials and Equipment
Company (NUMEC).” (P. Notice, ECF No. 14-1 Ex. 16). The memorandum mentions an FBI
investigation into a possible violation of the Foreign Agents Registration Act by NUMEC’s
president, but indicates the FBI did not investigate the “alleged discrepancy in nuclear materials at
NUMEC” because the Atomic Energy Commission advised the FBI that “any loss likely was
attributable to inadequate accounting procedures.” (Id.). It describes a number of criminal statutes
that may have been implicated, including “violation of Atomic Energy Act,” “disclosure of
restricted data,” “transportation of dangerous articles,” “espionage,” “accessory after the fact,”
“misprision of felony,” and conspiracy. (Id.). The memorandum opines that “it is necessary to
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conduct an investigation” into “whether any dismissal or other disciplinary proceedings may be
appropriate with respect to any persons presently employed as federal officials who may have
participated in or concealed any offense.” (Id.).
The court does not find that the 1976 DOJ memorandum suggests the existence of a DOJ
investigation meeting the second and third criteria from Morley. The memorandum contains no
references to the CIA or to any impropriety by the CIA in its conduct of intelligence activity, nor
does it contain any statements from which the court could infer an investigation into any such
impropriety. A December 7, 1978 memorandum from DOJ legal counsel to the FBI Director, also
submitted by Plaintiff, explains that the Department of Justice investigation was “attempting to
determine if there is any individual agency in the Government which knew about a possible
violation of the Atomic Energy Act and did nothing about it.” (P. Notice, ECF No. 14 Ex. 18).
Without some indication that the Department of Justice investigation specifically included or
targeted the CIA, the court cannot conclude that the investigation meets the subsection (3) exception
to the Act’s exemptions. Plaintiff argues that the materials he submitted “d[o] not rule out that the
DOJ was investigating CIA for improprieties in this particular instance,” (Opposition at 15), but that
is not enough. The text of section 1341 does not direct a court to except from exemption files that
“may” pertain to an investigation, or to find the criteria for exception met because the court cannot
“rule out” that the agency was subject to investigation.
Plaintiff also points to a memorandum by then-National Security Advisor Zbigniew
Brzezinski to the President on August 2, 1977, in which Brzezinski stated, “[s]o far as we know
however (and we have made serious effort to discover it) there is nothing to indicate active CIA
participation in the alleged [uranium] theft.” (Compl. Ex. 15). The memorandum also explains that
the FBI investigated the situation beginning in 1965, concluded that the head of NUMEC “did
indeed have frequent contacts with Israeli officials,” and transmitted that information to the CIA,
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“at whose request the investigation had been undertaken,” after which the CIA head “responded
with a series of letters to Hoover urging that the FBI take additional steps, including wiretapping
and surveillance of” the head of NUMEC, but Hoover refused. (Id.). The court finds this
memorandum does not meet any of the Morley criteria for excepting operational files from
exemption. It does not describe an investigation by an enumerated entity into the intelligence
activities of the CIA.3 “Serious efforts” by the National Security Council to discover any CIA
involvement in the possible theft does not constitute an investigation by a named entity, nor does it
implicate the CIA’s conduct of intelligence activity. In fact, the memorandum appears to point to
conduct suggesting the FBI’s reticence to investigate rather than the CIA’s. Plaintiff again asks the
court to draw a number of inferences and make a number of assumptions arising out of the materials
he has submitted: that the memorandum suggests the President’s interest, which suggests that the
President “would have sought out a federal executive department responsible for the enforcement of
the law” to investigate the CIA, and ultimately the matter would have landed at the Department of
Justice, (Opposition at 21). Bbut it is not the court’s role to make inference upon inference. Where
it is not clear from the materials submitted that there was an investigation that meets the statutory
language, the court will not require the CIA to search its operational files.
Finally, Plaintiff argues that a Government Accounting Office (“GAO”) investigation meets
the Act’s criteria, but the court disagrees. Plaintiff submits a 1978 GAO investigation report titled
“Nuclear Diversion in the U.S.? 13 Years of Contradiction and Confusion.” (Compl. Ex. 11). The
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Plaintiff appears to misunderstand the Act’s reference to a “Presidential directive,” which appears
in the statute as one of the types of law or statutes, investigation of a violation of which is the type
that excepts material from the Act’s exemption. The “Presidential directive” reference does not
mean, as Plaintiff suggests, that where the President investigates an intelligence agency, the agency
loses the operational files exemption. Plaintiff’s argument that the memorandum implies “[t]he
President’s request to make a serious effort to discover” any CIA involvement “was a ‘directive’
under 50 U.S.C. § 3141(c)(3)” is a misreading of the statute. A “Presidential directive” is a type of
law under the statute, not a type of investigation.
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report indicates that it was initiated at the request of the chairman of the House Interstate and
Foreign Commerce Committee Subcommittee on Energy and Power. (Id.). It describes its contents
as a report on an “investigation to determine the extent and contents of intelligence and related
nuclear safeguards information regarding a possible diversion of nuclear material from a U.S.
facility and the extent to which this information was disseminated among those agencies having
responsibilities in this area.” (Id.). The introduction to the report also states that the GAO “plan[s]
to distribute the report to certain other parties,” including “the Chairman of the House Committee
on Interior and Insular Affairs and the Chairman of the Subcommittee on Energy, Nuclear
Proliferation and Federal Services, Senate Committee on Governmental Affairs,” as well as “the
House and Senate Select Intelligence Committees” and “the Federal agencies included in [the
GAO’s] review.” (Id.). It is clear that the GAO report was prepared at the behest of the Chairman
of the House Subcommittee on Energy and Power, and not any intelligence committee; the report
therefore does not constitute the product of an investigation “by the congressional intelligence
committees” or any other entity listed in section 3141.
In light of the foregoing, the court finds the CIA’s search adequate, and its decision not to
search operational NCS files pursuant to the Act appropriate.
ii. Decennial Review
The CIA Information Act also requires the CIA to review the exempted files at least every
ten years to determine whether they can be removed from categories of exempted files, on the basis
of “historical value or other public interest in the subject matter of the particular category of files or
portions thereof.” 50 U.S.C. § 3141(g)(2). Subsection (g) authorizes a complainant to seek review
in a United States District Court of the CIA’s failure to comply with the section, but that review is
limited to the court’s determining (1) whether the CIA has conducted the required review before the
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expiration of the current ten-year period (with the first ten-year period terminating on October 15,
1994), and (2) whether the CIA considered the “public interest” criteria. Id. § 3141(g)(3).
Plaintiff claims that the CIA “has provided no evidence that the required decennial reviews
have taken place.” (Opp. at 30). The CIA replies that the files “were subject to decennial review in
April 2015, April 2005, and March 1995 after announcement in the Federal Register.” (Reply at 9).
The CIA provides the Federal Register cites—80 Fed. Reg. 21,704 (Apr. 20, 2015); 69 Fed. Reg.
76,449 (Dec. 21, 2004); 59 Fed. Reg. 40,339 (Aug. 8, 1994)—to the CIA’s solicitation of public
comment regarding the historical value of, or other public interest in, the files, and the court finds
the notices in the Federal Register constitute sufficient evidence that the required decennial reviews
were completed. The agency’s declaration also describes the general decennial review process.
The Director of NCS, along with the Deputy Director of CIA for Science and Technology, and the
Director of Support, in consultation with the Chief of the CIA History Staff, make
recommendations to the Director of the CIA as to files or portions of files that should no longer be
exempt, taking into account “considerations of the historical value or other public interest in the
subject matter.” (Wilson Decl. ¶ 32). The CIA is not required to demonstrate that it conducted an
appropriate decennial review of the specific files that Plaintiff seeks, because the CIA is not
required to search its operational files for records responsive to Plaintiff’s request. The statute
requires the agency only to demonstrate to the court that it has conducted the review and
implemented the statutory criteria. It is the CIA’s interpretation of whether the files are no longer
exempt based on historical value or public interest that determines whether files are removed from
exemption. The court is satisfied that the CIA has met its section 3141(g) obligations.
iii. Exemptions
In evaluating the CIA’s motion for summary judgment, the court must also determine
whether its withholding pursuant to certain FOIA exemptions was appropriate. After the ISCAP
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decision, the CIA withheld sixteen records in part and one in full, and claimed exemptions 1, 3, 6,
7(c), and 7(E), based on consultations with the Federal Bureau of Investigation, the Department of
State, and the Department of Energy. The CIA submitted a Vaughn index detailing its withholding.
(Wilson Decl. Ex. F). The FBI, State Department, and Department of Energy also submitted
declarations justifying their withholding of certain portions of the records. (Hardy Decl.; Hackett
Decl.; Stein Decl.). While Plaintiff claims generally that the CIA “appl[ied] overly broad
interpretations of FOIA exemptions with near zero segregation to released and unreleased non-
operational file material,” (Opposition at 5), he makes no further argument about any specific
withheld material. The court therefore conducts its own analysis of the propriety of the CIA’s
withholding. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 506 (D.C. Cir. 2016) (“A court
must always engage in the analysis required by Rule 56 before acting on a motion for summary
judgment.”).
The CIA, FBI, and State Department all invoked FOIA exemption 1, which allows
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,” and “are in fact properly
classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The court takes a deferential
approach toward national security exemptions. See Larson v. Dep’t of State, 565 F.3d 857, 865
(D.C. Cir. 2009). The CIA invoked exemption 1 pursuant to Executive Order 13526 as to portions
of a number of records, including, among others:
 internal agency memoranda about briefings of Senator John Glenn, Congressman
Mike McCormack, Representative Morris Udall, and others on the NUMEC case;
 an internal agency routing slip attaching three internal agency memoranda, titled
“Nuclear Materials and Equipment Corporation,” “Possible Diversion of Weapons
Grade Nuclear Materials to Israel by Officials of the Nuclear Materials and
Equipment Corporation (NUMEC),” and “The NUMEC Case;”
 a letter from the CIA director to Senator Daniel Inouye, responding to his request for
information on the NUMEC case;
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 an internal agency memorandum titled “Proposed Briefing of the FBI on NUMEC
Related Nuclear Diversion Information;”
 a memorandum concerning discussion of the NUMEC case with House Energy
Committee members.
(CIA Vaughn Index). The FBI justified its FOIA exemption 1 withholdings, pursuant to Executive
Order 13526’s classification criteria, in order to “protect from disclosure information that would
reveal the actual intelligence sources and methods used by the FBI against specific targets of
foreign counterintelligence investigations,” and to protect information about “activities by the
United States or foreign governments and agencies that if known, could seriously and demonstrably
impair relations between the United States and a foreign government.” (Hardy Decl. ¶¶ 17-19).
The State Department invoked exemption 1 as to information from confidential “diplomatic
exchanges” that “concerns sensitive aspects of U.S. foreign relations,” release of which “has the
potential to inject friction into, or cause damage to, a number of [U.S.] bilateral relationships with
countries whose cooperation is important to U.S. national security.” (Hackett Decl. ¶¶ 11-12).
The CIA, FBI, and Department of Energy invoked FOIA exemption 3, which allows
withholding of information “specifically exempted from disclosure by statute” if the statute
“leave[s] no discretion,” “establishes particular criteria for withholding,” and, if enacted after the
date of the enactment of the OPEN FOIA Act of 2009, specifically cites to the text of exemption 3.
5 U.S.C. § 552(b)(3). The CIA named the National Security Act and CIA Act as the statutes
specifically exempting disclosure, the FBI named the National Security Act, and the Department of
Energy named the Atomic Energy Act. (CIA Vaughn index; Hardy Decl. ¶ 20; Stein Decl. ¶ 8). All
three statutes are within the purview of FOIA exemption 3. See Fitzgibbon v. CIA, 911 F.2d 755,
761 (D.C. Cir. 1990) (“There is [] no doubt that [the National Security Act] is a proper exemption
statute under exemption 3”); Morley, 508 F.3d at 1118; Ctr. for Pub. Integrity v. U.S. Dep’t of
Energy, No. 1:15-CV-01314, 2017 WL 176268, at *12 (D.D.C. Jan. 17, 2017) (granting summary
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judgment to Department of Energy on FOIA exemption 3 withholding pursuant to Atomic Energy
Act). The court finds that each agency has set forth information that sufficiently justifies its
withholding in accordance with the three statutes.
The FBI also invoked FOIA exemptions 6 and 7(C), which protect against invasions of
personal privacy, to withhold the “names and identifying information of FBI special agents (‘SAs’)
who were responsible for conducting, supervising, and/or maintaining the investigative activities
reflected in the documents responsive to plaintiff’s FOIA request.” (Hardy Decl. ¶ 30). Exemption
6 applies to “personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 6 requires a
court to “pursue two lines of inquiry,” first determining whether the records at issues are personnel,
medical, or similar files, and then determining whether their disclosure would “constitute a clearly
unwarranted invasion of personal privacy,” which requires balancing “the privacy interest that
would be compromised by disclosure against any public interest in the requested information.”
Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). The Supreme Court
has stated that the term “similar files” is to be construed broadly, and includes any “disclosure of
information which applies to a particular individual.” U.S. Dep’t of State v. Wash. Post Co., 456
U.S. 595, 600 (1982).
FOIA exemption (7)(C) applies to “records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or information
. . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. §
(b)(7)(C). Exemption 7(C), while broader than exemption 6, also requires the court to “balance the
. . . privacy interest against the public interest in disclosure.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 171 (2004). Once the court finds that “the privacy concerns addressed by
exemption 7(C) are present,” the requester must “establish a sufficient reason for the disclosure” in
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order to obtain the records. Id. at 172. In order to establish sufficient reason, the requester must
show, first, “that the public interest sought to be advanced is a significant one, an interest more
specific than having the information for its own sake,” and, second, that “the information is likely to
advance that interest.” Id. Plaintiff has not identified, nor is the court aware of, any public interest
that would be served by disclosing the identities of the FBI special agents. FBI’s invocation of
FOIA exemptions 6 and 7(C) is therefore appropriate.
The FBI also invoked FOIA exemption 7(E), which permits withholding of law enforcement
records that “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §
522(b)(7)(E). The FBI withheld information pertaining to a “sensitive technique used by FBI
agents to conduct criminal investigations.” (Hardy Decl. ¶ 33). The court finds the FBI has
justified its FOIA exemption 7(E) withholding.
The court finds the CIA has met its obligations under FOIA, conducting an adequate search
and releasing all reasonably segregable portions of responsive records, and will therefore grant the
CIA’s motion for summary judgment.
B. Motion to amend
Plaintiff requests permission to amend his complaint and add the Department of Justice as a
defendant. He does so in hopes of obtaining proof from the DOJ that it conducted an investigation
into the CIA, which Plaintiff believes will then entitle him to a CIA search of its operational files.
(See Mot. to Amend at 3 (“the Plaintiff as [sic] a right to review the Department of Justice’s own
actual final investigative report and all related files on the matter in support of his arguments”)).
Plaintiff proffers his February 16, 2011 FOIA request to the Department of Justice, in which he
requested “a copy of the Criminal Division’s information pertaining to allegations of cover-ups by
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governmental agencies of the NUMEC case,” and “any final report by this task force, including
relevant investigation files, correspondence, interview transcripts and other cross referenced
information.” (Id. Ex. 16, ECF No. 19-2). The Criminal Division confirmed Plaintiff’s request on
February 25, 2011, and informed him that it had re-routed the request to the FBI and the National
Security Division. (Id. Ex. 17). On September 27, 2011, the National Security Division informed
Plaintiff that it had searched the Counterespionage Sections records and had not located any
responsive records. (Id. Ex. 20). Plaintiff appealed several days later. (Id. Ex. 21). Plaintiff’s
appeal was denied almost one year later by the Office of Information Policy, which explained that
the National Security Division had conducted a second search and had still not found any
responsive records. (Id. Ex. 23).
Plaintiff filed this lawsuit in 2015. If he believed the Department of Justice was an
appropriate defendant based on its response to his 2011 FOIA request in 2012, he had the
opportunity to name the agency when he brought this case in 2015. He invokes Federal Rule of
Civil Procedure Rule 15(a), which states the court “court should freely give leave [to amend a
pleading] when justice so requires,” Rule 15(c), which provides for relation back of amendments,
and Rule 15(d), which allows the court to “permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. Proc. 15. Plaintiff argues that the CIA’s release of documents to him
constitutes an “event” within the meaning of Rule 15 that entitles him to amend his pleading. (Mot.
to Amend at 4). Plaintiff also invokes Federal Rule of Civil Procedure 21, which allows the court
to, “at any time, on just terms, add or drop a party” in order to avoid dismissal based on misjoinder
of parties. Fed. R. Civ. Proc. 21. Plaintiff claims that “the Department of Justice should expect
challenges, given the current shadow cast by its own previous investigation over the present action,”
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and that amendment is appropriate because his complaint against the Department of Justice involves
the same subject matter as this case. (Mot. to Amend at 5-6).
The court does not find it in the interest of justice to allow Plaintiff to amend his Complaint
at this stage in the litigation and add the Department of Justice as a defendant. This litigation had
been ongoing for almost a full year when Plaintiff asked to name an additional party. The CIA had
already moved for summary judgment. The CIA’s motion for summary judgment is not an “event
that happened after the date of the pleading,” nor does Plaintiff’s motion to amend constitute a
“supplemental pleading” within the meaning of Rule 15. In deciding whether to allow amendment,
a court can consider “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment.” Foman v. Davis, 371 U.S.
178, 182 (1962). The court finds under these circumstances that Plaintiff’s delay and the prejudice
to the opposing party weigh against allowing amendment.
Rule 20 allows joinder of a defendant where “any right to relief is asserted against
[defendants] jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences,” and where “any question of law or
fact common to all defendants will arise in the action.” Fed. R. Civ. Proc. 20(a)(2)(A)-(B). The
court finds that the relief asserted against the Department of Justice does not arise out of the same
transaction as that against the CIA, and that even if the Department of Justice would have been an
appropriate defendant earlier in the litigation, joinder at this stage would result in undue prejudice to
the CIA. Plaintiff submitted two separate FOIA requests, seeking different information, to the two
separate agencies, and does not assert relief against them jointly based on any collaboration in
responding to his requests. His request to the DOJ sought information about a DOJ investigation
into government agencies including the CIA, and his request to the CIA sought information about
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uranium diversion at NUMEC. That his FOIA requests were related to the same general topic does
not make the two agencies jointly or alternatively liable. Moreover, allowing Plaintiff to amend
would prejudice the CIA, which is entitled to resolution of this case. As the CIA points out,
Plaintiff has been aware since September 2010 that the CIA intended to rely on section 3141’s
exemption from searching operational files, yet Plaintiff seems to suggest that amending his
Complaint is warranted based on the CIA’s invocation of section 3141. Because Plaintiff has not
explained his delay in seeking amendment of his complaint until after Defendant moved for
summary judgment, and because the amendment would prejudice the CIA, his request to add the
Department of Justice as a defendant does not meet the standards of Rule 15 or Rule 20, and his
motion will be denied.4
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment will be GRANTED
and Plaintiff’s Motion to Amend his Complaint will be DENIED.
A corresponding order will issue separately.
Dated: March 31, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
4
Plaintiff filed what is in essence a reply in support of his motion to amend, (ECF No. 22), claiming
to bring “new information about [the] case to the court’s attention.” (ECF No. 22 at 1). Plaintiff
states “a reporter form the Pittsburgh Post-Gazette whom the Plaintiff knows” informed him that
the Department of Justice is “secretly negotiating” a toxic clean-up deal for a for a former NUMEC
site. (Id. at 3). Plaintiff believes the Department’s reticence to provide the information he seeks is
related to this clean-up effort. (Id.). He also stated that “based on an interview with a former high
Department of Justice official with direct knowledge of the investigation, the Plaintiff discovered
that the U.S. Department of Justice did indeed investigate the CIA over the NUMEC affair.” (Id. at
4). The court does not find Plaintiff’s “new information” merits an amendment of the Complaint.
Plaintiff still does not meet the Rule 15 or Rule 20 standards for joinder and amendment, and the
court is additionally unable to credit Plaintiff’s sources in the absence of any sort of sworn
declaration or affidavit from them directly.
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