Talbot v. U.S. Department of State ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID TALBOT,
Plaintiff,
v. Case No. 17-cv-0588 (CRC)
U.S. DEPARTMENT OF STATE et al.,
Defendants.
MEMORANDUM OPINION
Over a half-century after President Kennedy’s assassination, theories still abound as to
who was responsible. Investigative journalist David Talbot points the finger at the Central
Intelligence Agency (“CIA”). In a quest for supporting evidence, Talbot filed Freedom of
Information Act (“FOIA”) requests with the CIA and the State Department for passport and
travel records of two deceased CIA agents who Talbot suspects were aware of the agency’s
involvement in the assassination, or worse. Talbot apparently seeks the records in order to link
the agents’ comings and goings to the known whereabouts of other characters in the continuing
whodunit.
In this suit, Talbot challenges the adequacy of the agencies’ searches in response to his
requests and the appropriateness of their reliance on a number of FOIA exemptions to withhold
otherwise responsive records. Both sides now seek summary judgment. For the reasons
explained further below, the Court will grant summary judgment to the agencies with two
exceptions: it concludes that (1) the State Department’s search for passports issued to one of the
agents under two pseudonyms was unduly restrictive and (2) certain potentially responsive
records in operational files that the CIA claimed were exempt from disclosure fall under an
exception to that exemption and, consequently, the CIA must either search the files for those
records or explain why no responsive records are likely to be found there.
I. Background
David Talbot is a journalist, author, and co-founder of the online newspaper Salon.com.
Compl. ¶ 1. He has written multiple books covering the historical period of the presidency of
John F. Kennedy, including the Kennedy assassination. Id. ¶¶ 1–3. In May 2013, in connection
with research for a now-published book on former CIA Director Allen Dulles, Talbot submitted
FOIA requests to the Department of State and the CIA. The request to the State Department
sought “[a]ll passport and visa records pertaining to” two former CIA agents, William King
Harvey and F. Mark Wyatt, from January 1, 1950 through July 1, 1976, as well as copies of all
photographs of the two men. Id. Ex. 1. The request to the CIA also sought records related to
Wyatt and Harvey, specifically “[a]ll records pertaining to temporary duty (TDY) travel,” “[a]ll
passport and visa records,” “[a]ll records reflecting assignment to a[] station, post, base, unit or
other component of the CIA,” and “[a]ll photographs pertaining to” the two from January 1,
1950 to July 1, 1976 for Harvey and from January 1, 1948 to 1975 for Wyatt. Id. Ex. 6.
State and the CIA informed Talbot they had received his requests and began processing
them. Id. ¶¶ 11, 20. When the agencies failed to fully process Talbot’s requests, he brought suit
against them in this Court. After production was completed, both parties filed motions for
summary judgment, with Talbot challenging the agencies’ searches and their withholdings. The
Court held a hearing on the motions on May 15, 2018.
II. Standard of Review
Summary judgment may be granted when the moving party establishes that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ.
2
P. 56(a). Summary judgment is the typical mechanism to determine whether an agency has met
its FOIA obligations. See, e.g., Judicial Watch, Inc. v. CFPB, 60 F. Supp. 3d 1, 6 (D.D.C. 2014).
Under FOIA, an agency is first required to make an adequate search for any responsive
records. Rodriguez v. U.S. Dep’t of Def., 236 F. Supp. 3d 26, 34 (D.D.C. 2017). In reviewing
an agency’s search, courts apply a “reasonableness” test that looks to the methods and not the
fruits of a search. Id. To prove its search was reasonable, the agency “must show that it made a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). The agency may rely on affidavits that detail “what records were
searched, by whom, and through what process” to make this showing. Steinberg v. U.S. Dep’t of
Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Agency affidavits are “accorded a presumption of
good faith.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
In addition to demonstrating that it conducted an adequate search, the agency must also
justify any withholdings it has made pursuant to a FOIA exemption. See, e.g., Larson v. Dep’t
of State, 565 F.3d 857, 862 (D.C. Cir. 2009). Justification can be provided by sufficiently
detailed agency affidavits. See, e.g., id. Because the primary purpose of FOIA is disclosure,
exemptions are construed narrowly. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C.
Cir. 2015).
The agencies here have invoked three separate FOIA exemptions. First, the CIA has
withheld some documents under Exemption 1, which protects from disclosure documents
“specifically authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy” and that “are in fact properly classified pursuant to
such Executive order.” 5 U.S.C. § 552(b)(1). Second, the CIA has withheld documents under
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Exemption 3, which covers certain records “specifically exempted from disclosure by statute.” 5
U.S.C. § 552(b)(3). To demonstrate that records fall within Exemption 3, the agency must show
that “the statute claimed is one of exemption as contemplated by Exemption 3 and that the
withheld material falls within the statute.” Larson, 565 F.3d at 865.
Finally, both the State Department and the CIA have redacted certain names and personal
information under Exemption 6, which covers “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). Courts follow a two-part test in applying Exemption 6. See, e.g., Multi Ag
Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1228 (D.C. Cir. 2008). First, the Court
determines whether the information constitutes “personnel, medical, or ‘similar’ files covered by
Exemption 6.” Id. Then, the Court determines whether disclosure would “‘constitute a clearly
unwarranted invasion of personal privacy’” by “balanc[ing] the privacy interest that would be
compromised by disclosure against any public interest in the requested information.” Id.(quoting 5 U.S.C. § 552(b)(6)).
III. Analysis
Talbot challenges nearly every aspect of the State Department’s and the CIA’s response
to his FOIA requests.1 He first contends that neither agency performed an adequate search for
records. He next argues that both agencies’ withholdings were improper. Finally, he argues that
the agencies have not met their obligations to segregate non-exempt material from the withheld
records. The Court will begin in Foggy Bottom before traveling to Langley.
1
While Talbot’s complaint even challenges the $31.70 fee charged by the CIA to process
the Harvey records, Compl. ¶¶ 37–38, he does not mention that fee in his briefing on summary
judgment.
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A. The State Department’s Search and Withholdings
Talbot challenges the State Department’s search and production on several grounds: that
(1) the Department’s search for records responsive to his May 2013 request was inadequate, (2)
its withholdings were improper, and (3) it failed to respond to a separate April 2016 request he
submitted. While the Court will grant the Department summary judgment as to its withholdings,
the April 2016 request, and its search for Agent Wyatt’s records, it will deny both motions
without prejudice as to the adequacy of the Department’s search for passport records associated
with Agent Harvey’s two pseudonyms.
1. Adequacy of the State Department’s search
The State Department’s search for passport records for both Harvey and Wyatt is
described in declarations submitted by Eric F. Stein, the Director of the Department’s Office of
Information Programs and Services. According to Mr. Stein, the Department determined that
any responsive records were likely to be found in the Department’s Office of Passport Services
because that office handles the issuance of passports to U.S. citizens. Decl. of Eric F. Stein
¶¶ 14–15. Department personnel conducted a search of several electronic databases that
typically contain records for more recent passports, but also include some imaged records for
older passports. Id. ¶¶ 16–17, 20. These personnel searched for records listing Harvey’s name
and birthdate, Wyatt’s name and birthdate, or two pseudonyms used by Harvey that Talbot
provided and Harvey’s actual birthdate. Id. ¶¶ 16–17, 20. Additionally, Department personnel
searched the agency’s archived hard copy passport files, again for passport records with
Harvey’s name and birthdate, Wyatt’s name and birthdate, or Harvey’s two pseudonyms and
actual birthdate. Id. ¶¶ 18, 21. The Department found ten documents pertaining to Wyatt but
none to Harvey. Id. ¶¶ 19, 22.
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Talbot advances several arguments as to why this search was inadequate, all but one of
which are unavailing. First, Talbot faults the Department for searching using only Harvey’s and
Wyatt’s first and last names rather than their full names including their middle names. Mem. P.
& A. Opp’n Defs.’ Mot. Summ. J. & Supp. Pl.’s Mot. Summ. J. (“Pl.’s Cross-MSJ”) at 12–13,
16. But Mr. Stein clarifies in a supplemental declaration that any results from the search using
first and last names would necessarily include results associated with their full names. Suppl.
Decl. of Eric F. Stein ¶¶ 5, 8.
Next, Talbot contends that the Department should have searched for records related to
two specific passports, which other records produced by the Department indicated were used by
Wyatt. Pl.’s Cross-MSJ at 18. In his supplemental declaration, however, Mr. Stein attests that
the Department ran an additional search for any responsive records related to those two passports
and found none. Suppl. Decl. of Eric F. Stein ¶¶ 10–12.
Third, Talbot contends that the search excluded theoretical locations where records could
have been found. He speculates, for instance, that there must be some sort of “records system
relating to passport services provided to CIA officers” that the Department neglected to search.
Pl.’s Cross-MSJ at 14. Similarly, Talbot argues that the Department also needed to search
“employment and personnel records relating to employees who receive ‘special passports.’” Id.
at 17. But as the Department notes, Talbot’s request was for passport and visa records
pertaining to Wyatt and Harvey, not for any records or even for any employment or personnel
records. See Compl. Ex. 1. The Department does not typically create or maintain records on
visas that Americans receive from foreign countries—those are housed with the foreign country
authorizing the visa. Decl. of Eric F. Stein ¶ 14 n.1. As to passport records, the Department has
explained why the locations searched—the electronic and paper records of the office responsible
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for processing and issuing passports to U.S. citizens—were the logical places to find any
responsive records. Id. ¶¶ 14–15.
Talbot also contends that the search for Harvey’s passport records was inadequate
because the Department failed to find any responsive records—a result he argues “beggars
belief” because Harvey “was a CIA officer serving in overseas posts in the 1950s and 1960s” and
it is “well documented that he travelled extensively during that time.” Pl.’s Cross-MSJ at 14.
But it is well-settled that the adequacy of a search “is generally determined not by the fruits of
the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Records, especially ones that are
several decades old, “may have been accidentally lost or destroyed, or a reasonable and thorough
search may have missed them.” Id. The Department has attested that it searched the place most
likely to contain passport records using reasonable terms, namely Harvey’s name and birthdate.
Talbot’s final argument fares better. When the Department searched for passports issued
under two pseudonyms that Harvey is known to have used, it limited its search to records
containing those pseudonyms and Harvey’s actual birthdate. Decl. of Eric F. Stein ¶ 18. It
strikes the Court as unlikely that a CIA officer using a pseudonym would list his real birthdate
with the false name rather than a false birthdate. The Department’s declarations offer nothing to
support a contrary conclusion. The Court therefore concludes that the Department’s search for
only records reflecting Harvey’s actual birthdate was too narrow. As a result, the search was not
reasonably calculated to find all responsive records. The Court will, accordingly, deny both
motions without prejudice as to this aspect of the Department’s search and will require a further
search for records associated with Harvey’s pseudonyms.
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That said, the Court appreciates that there may be many passports issued to other
individuals who share a name with Harvey’s pseudonym, especially the pseudonym “William
Walker,” which the State Department would not be at liberty to produce. At the hearing,
Talbot’s counsel proposed several possible ways to limit the Department’s search so as to
exclude results that are not likely to be Harvey’s passport records—namely, using a range of
birthdates falling within five years of Harvey’s actual birthdate (that is, two-and-a-half years on
either side of his actual birthdate) and limiting the search to passport applications listing planned
travel to Germany or Italy (where Talbot believes Harvey travelled during the relevant time
period). Given these reasonable limitations, the Court will require the State Department to
conduct another search with these parameters and to report back on whether the search yields
any results. If it does, the Court will consider ways that it might determine whether the passport
records are associated with Harvey and not someone else.
2. The State Department’s withholdings
Next, Talbot challenges the State Department’s decision to withhold certain information
pursuant to Exemption 6. As explained by Johnathan Rolbin, the Director of Legal Affairs and
Law Enforcement Liaison for the Department’s Passport Services Directorate, the Department
redacted from the disclosed records the names and signatures of Department employees and the
names, birth dates, and places of birth of Wyatt’s then-minor children. Decl. of Johnathan M.
Rolbin ¶¶ 5, 9–12. As to the details regarding Wyatt’s children, the Department concluded that
the release of that information “would reveal private details of these individuals’ lives, including
when and how these individuals were documented as U.S. citizens” and “other biographical
information in which these individuals have a privacy interest” but would “shed no light on the
operations and activities of the U.S. government.” Id. ¶ 9. For the Department employees, it
8
was felt that the release of the redacted information could “subject them (and their family
members) to harassment, violence, or even improper civil judgments outside of the workplace.”
Id. ¶ 10; see also id. ¶¶ 11–12. For instance, Mr. Rolbin explains that “Department employees
involved in passport adjudication process have been named personally in state court lawsuits
seeking personal monetary civil judgments” and “have been subject to personal threats and
harassing communications,” even if the employees no longer work for the Department. Id. ¶ 10;
see also id. ¶¶ 11–12.
As noted above, the Court applies a two-part test to determine the applicability of
Exemption 6. See, e.g., Multi Ag Media, 515 F.3d at 1228. First, the Court determines whether
the information sought to be withheld meets the requirements of “personnel, medical, or ‘similar’
files covered by Exemption 6.” Id. Talbot argues that “[t]he redactions in issue in this case are
neither medical nor personnel files nor are they files similar to medical or personnel files.” Pl.’s
Cross-MSJ at 25. But he is incorrect in light of the Supreme Court’s decision in U.S.
Department of State v. Washington Post Co., 456 U.S. 595 (1982), which held that Exemption 6
covers all “information which applies to a particular individual” no matter the type of file it is
contained in, id. at 602. The information redacted here—specifically, the names and signatures
of employees and the names, birth dates and places of birth of Wyatt’s children, Decl. of
Johnathan M. Rolbin ¶ 5—clearly applies to particular individuals.
Talbot next contends that the privacy harms identified by Mr. Rolbin are “secondary
effects” that are insufficient to trigger Exemption 6. This argument also misses the mark. The
D.C. Circuit has recognized that the “secondary effects” of a document’s release do not qualify
to trigger the applicability of Exemption 6. Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462, 1468
(D.C. Cir. 1983). But the types of harms addressed in Arieff are different; since the records at
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issue there contained no information directly attributable to an individual, id. at 1466, any harm
that flowed from their release was distinct from the type of harm that could “only occur when the
documents disclose information attributable to an individual,” id. at 1468. Here the redacted
information is attributable to an individual and the harms that Mr. Rolbin identifies flow directly
from the release of information attributable to that individual.
Additionally, Talbot suggests that the Department’s redactions were inappropriate
because it failed to verify that the individuals whose names were redacted were still alive (and
deceased individuals lack a sufficient privacy interest to justify the application of Exemption 6 in
this context). Pl.’s Cross-MSJ at 22. But in a supplemental declaration, Mr. Rolbin explains that
the Department verified whether the individuals at issue were alive and released additional
records for those it concluded were not. Suppl. Decl. of Johnathan M. Rolbin ¶ 4. It made these
determinations using human resources files, the Social Security Death Matrix File, and a
precautionary presumption that individuals born within 100 years are still alive. Id. The
Department’s approach as outlined in this supplemental declaration was adequate. See
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 663–65 (D.C. Cir. 2003) (holding that agency
that relied on institutional knowledge of life status, searched the Social Security Death Index
with individuals’ social security number, and applied a similar 100-year rule adequately
attempted to verify whether individuals were still living).
Finally, Talbot argues that even if the threshold requirements for Exemption 6 are met,
the balance of privacy interests and public interests favors disclosure here. Pl.’s Cross-MSJ at
25–26; see Multi Ag Media, 515 F.3d at 1228 (the second step for determining the applicability
of Exemption 6 is a balancing of the privacy and public interests). The Court disagrees. With
respect to Wyatt’s children, the disclosure of information regarding “private citizens” which
10
“‘reveals little or nothing about an agency’s own conduct’ does not serve a relevant public
interest under FOIA.” Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of
Health & Human Servs., 554 F.3d 1046, 1051 (D.C. Cir. 2009). The names, places of birth, and
dates of birth of Wyatt’s then-minor children—which is what the Department redacted, Decl. of
Johnathan M. Rolbin ¶¶ 9, 11—sheds little if any light on the Department’s own conduct. The
privacy interests of Wyatt’s children in their personal biographical information thus outweigh
whatever public interest might exist in the disclosure of the information.
This leaves the redacted names and signatures of State Department employees who were
involved in processing Wyatt’s passports. See id. ¶¶ 10–12. The question is whether the
“incremental value of the specific information being withheld”—the employees’ names and
signatures—would outweigh the employees’ privacy interests. See Schrecker, 349 F.3d at 661.
It would not. Mr. Rolbin points to several legitimate concerns the employees might have about
the disclosure of their names, including the possibility of harassment and threats. Decl. of
Johnathan M. Rolbin ¶¶ 10–12. These concerns exist even if the particular passport application
decisions here are favorable: the release of the names and signatures provides a possible target
for other members of the public who have received unfavorable decisions. While these concerns
strike the Court as somewhat attenuated, Talbot points to little value that would be gained by
knowing the specific civil servants involved in the processing of the passports beyond what was
already disclosed by the released redacted records. The Court therefore concludes that the public
interest here does not outweigh the privacy interest of the employees. The Department’s
redactions under Exemption 6 were proper.
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3. The April 2016 request
Finally, Talbot argues that the Department failed to respond to a separate April 16, 2016
FOIA request that he submitted. Pl.’s Cross-MSJ at 19. The Department responds that it never
received this request. Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”) at 17. If an agency
does not receive a FOIA request then it has no obligation to respond to it. See, e.g., Kanaya v.
Alcohol, Tobacco, Firearms & Explosives, 284 F. Supp. 3d 1, 2 (D.D.C. 2018). An agency’s
affidavit attesting that it has no record of receiving the request will suffice to prevail on summary
judgment unless the requester can present sufficient evidence to create a genuine factual question
regarding the agency’s receipt of the request. See, e.g., id.; Pinson v. U.S. Dep’t of Justice, 69 F.
Supp. 3d 108, 114 (D.D.C. 2014).
Here, Mr. Rolbin attests that the Department searched its case tracking system and found
no evidence that the April 2016 request was received. Decl. of Johnathan M. Rolbin ¶¶ 13–15.
The Department also checked the case file for Talbot’s May 2013 FOIA request and consulted
the paralegal who handled that request, and similarly found no indication that the April 2016
request was received. Id. ¶ 16. In turn, Talbot submits a responsive declaration from his
attorney, Dan L. Hardway, attesting that he sent a FOIA request to the Department on April 16,
2016. Decl. of Dan L. Hardway ¶ 4. But as multiple judges in this District have recognized, the
mere fact that a plaintiff alleges a request was sent does not indicate the request was received.
See, e.g., Kanaya, 284 F. Supp. 3d at 2–3; Banks v. Lappin, 539 F. Supp. 2d 228, 235 (D.D.C.
2008). Mr. Hardway attaches to his declaration U.S. Postal Service tracking information he
claims is for the FOIA request that was sent, but this information does not indicate the address or
recipient of the request. See Decl. of Dan L. Hardway Ex. 5. Moreover, the State Department
notes that the package was shown delivered in Washington, D.C., but FOIA requests to the
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Department are to be sent to Sterling, Virginia. Defs.’ Reply at 18; see also 22 C.F.R.
§171.4(a)(1) (directing that requests for passport records should be sent to a post office box in
Sterling, Virginia). The Court finds that Talbot has failed to contradict the State Department’s
attestation that it never received his April 2016 request. See, e.g., Ning Ye v. Holder, 624 F.
Supp. 2d 121, 124 (D.D.C. 2009) (plaintiff’s attestation that he mailed FOIA request and
submission of tracking information that did not show the recipient’s name or address failed to
overcome agency declaration that it had no record of receiving plaintiff’s request). Summary
judgment is therefore appropriate for the State Department as to Talbot’s claims regarding the
April 2016 request.
B. The CIA’s Search and Withholdings
In challenging the CIA’s search and withholdings, Talbot contends that the agency: (1)
performed an inadequate search; (2) erroneously concluded that its operational files were exempt
from disclosure; (3) produced an inadequate Vaughn index; and (4) improperly withheld
responsive documents under Exemptions 1, 3, and 6. The Court will grant the CIA summary
judgment on each aspect of its search and production except for its failure to search its
operational files. As to that issue, the Court concludes that a subset of potentially responsive
records contained in operational files were not categorically exempt and the CIA must either
search its operational files for those records or explain why no such responsive records would be
found there.
1. Adequacy of the CIA’s search
Beginning with the adequacy of the CIA’s search for records, Antoinette B. Shiner, the
Information Review Officer at the CIA’s Litigation Information Review Office, submitted a
declaration on behalf of the agency outlining its search for records. According to Ms. Shiner, the
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CIA determined that the Official Personnel File (“OPF”) for Harvey and Wyatt were likely to
contain any responsive records, since such files “contain[], among other things, work-related
travel records (TDY records) and records pertaining to the assignment and reassignment of
officers throughout their career at the CIA.” Decl. of Antoinette B. Shiner ¶¶ 21, 23. CIA
personnel conducted a search for Wyatt’s and Harvey’s personnel files—a supplemental
declaration from Ms. Shiner explains this was done by using each agent’s name and Agency
Identification Number, a unique identifier provided to each CIA employee during their
employment. Suppl. Decl. of Antoinette B. Shiner ¶¶ 7–8. While Harvey’s file was located and
processed, the CIA was unable to locate Wyatt’s file. Decl. of Antoinette B. Shiner ¶¶ 22, 23.
The search indicated that Wyatt’s archived file was requested by staff from the Office of Human
Resources, was never returned to the records center, and could not be located by the Office of
Human Resources in its own files after two searches. Id. ¶ 22; see also Suppl. Decl. of
Antoinette B. Shiner ¶ 7 (describing additional search for Wyatt’s file).
Aside from a challenge to the CIA’s failure to search operational files, which the Court
will address separately below, Talbot primarily contends that the CIA’s search was inadequate
because it overlooked indications that responsive records could be found in other locations. Pl.’s
Cross-MSJ at 33–34. He points to specific documents suggesting an assortment of other
offices—such as the agency’s Office of Personnel Security—that might have other responsive
records. But the CIA is obligated to search where records are most likely to be housed today.
As Ms. Shiner explains, in the fifty plus years that have passed since the operative dates of
Talbot’s request, the CIA has “undergone numerous internal reorganizations” involving “the
creation of new divisions and components and the closure or merging of other divisions and
components, as well as a corresponding reshuffling of responsibilities among the various
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divisions within CIA.” Suppl. Decl. of Antoinette B. Shiner ¶ 10. Some of the divisions that
might have housed records in the 1950s and 1960s no longer do so or may even no longer exist.
Id. Moreover, Ms. Shiner has explained that given the age of the records, any existing records
would not be digitized. Id. These are adequate explanations for why the agency concluded that
the hard copies of Harvey’s and Wyatt’s personnel files were the most likely current repository
for any existing responsive records. See Decl. of Antoinette B. Shiner ¶¶ 21, 23; Suppl. Decl. of
Antoinette B. Shiner ¶ 5.
Talbot also argues the search was inadequate because the CIA was unable to find the
missing Wyatt personnel file and failed to detail the steps it took to locate it. Pl.’s Reply Defs.’
Opp’n (“Pl.’s Reply”) at 8. However, the declarations provided by Ms. Shiner attest that the CIA
division that houses the personnel files contacted the Office of Human Resources, which
conducted a search for Wyatt’s personnel file in December 2015 and again in June 2017. Decl.
of Antoinette B. Shiner ¶ 22; Suppl. Decl. of Antoinette B. Shiner ¶ 7. Human Resources
searched its own files and had the individual who requested Wyatt’s file search as well. Suppl.
Decl. of Antoinette B. Shiner ¶ 7. Neither Human Resources nor the requestor nor the division
that houses the personnel files could locate Wyatt’s file—and given its age, no digitization of the
file exists. Id.; Decl. of Antoinette B. Shiner ¶ 22. Shiner’s declarations sufficiently detail the
steps taken to find Wyatt’s missing file and are afforded a presumption of good faith. See, e.g.,
SafeCard Servs., 926 F.2d at 1200. Talbot offers no basis to discredit the declarations. The
Court therefore concludes that the CIA conducted a reasonable search for Wyatt’s file
notwithstanding its failure to locate it. In sum, setting aside the CIA’s failure to search
operational files, to which the Court will now turn, the Court concludes that the CIA conducted
an adequate search for responsive records.
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2. Search of the CIA’s operational files
Talbot also argues the CIA’s search was inadequate because the agency did not look for
any responsive records within its operational files. Pl.’s Cross-MSJ at 29–31. The CIA responds
that operational files—and thus any responsive records contained therein—are categorically
exempt from FOIA under the CIA Information Act, 50 U.S.C. § 3141. Defs.’ Reply at 5. That
statute defines “operational files” as files that “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,” 50 U.S.C.
§ 3141(b)(1), and generally exempts them from disclosure under FOIA, id. § 3141(a); see also
Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007). There is an exception, however: the
statute goes on to provide that operational files may still be searched for responsive records that
are “the specific subject matter of an investigation by the congressional intelligence committees”
or other specifically enumerated investigative offices conducted into “any impropriety, or
violation of law, Executive order, or Presidential directive, in the conduct of an intelligence
activity.” 50 U.S.C. § 3141(c)(3).2
The D.C. Circuit has laid out a three part test to determine if requested records fall under
this congressional-investigation exception to the CIA Information Act’s protection. See, e.g.,
Morley, 508 F.3d at 1116. First, the entity that performed the investigation must qualify as a
“congressional intelligence committee” or be one of the other listed entities in the statute. Id.Second, the request must concern “the specific subject matter” of the investigation. Id. at 1117
2
The specifically enumerated offices are: the Intelligence Oversight Board, the
Department of Justice, the Office of the General Counsel of the CIA, the Office of Inspector
General of the CIA, and the Office of the Director of National Intelligence. 50 U.S.C.
§ 3141(c)(3).
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(quoting 50 U.S.C. § 3141(c)). This requirement is satisfied when the investigating entity
“would have deemed the records at issue to be central to its inquiry.” Id. at 1118. Finally, the
investigation must be one into an “impropriety or violation of law, Executive order, or
Presidential directive, in the conduct of an intelligence activity.” Id. (quoting 50 U.S.C.
§ 3141(c)). Such an investigation need not involve misconduct that amounts to illegal behavior.
Id.Talbot argues that the records he requests fall under this exemption because they concern
the subject of multiple investigations, namely the Senate Select Committee of Intelligence (the
“Church Committee”) investigation into plots to overthrow or assassinate Fidel Castro; a CIA
Inspector General investigation into the Castro assassination plot; the Warren Commission
investigation into President Kennedy’s assassination; and the House Select Committee on
Assassinations (“HSCA”) investigation into the Kennedy assassination. Pl.’s Cross-MSJ at 30–
32.
Starting with the Church Committee, the D.C. Circuit has already held that it meets the
first requirement—that it is a “congressional intelligence committee”—and that its inquiry into
the CIA’s efforts to assassinate Fidel Castro meets the third requirement—that it is an
investigation into impropriety or violation of law in the conduct of an intelligence activity.
Morely, 508 F.3d at 1117, 1119. What remains, then, is whether the requested records meet the
second requirement: whether the Church Committee “would have deemed the records at issue to
be central to its inquiry.” Id. at 1118.
As to a subset of the requested records, the answer is yes. In 1975, William Harvey
testified as a witness before the Church Committee regarding his role from November 1961 to
March 1963 in a covert operation directed at overthrowing the Castro regime dubbed “Operation
17
Mongoose” and a related plan to assassinate Castro. Hearing Before the S. Select Comm. to
Study Gov’t Operations with Respect to Intelligence Activities, 94th Cong. 86:21, 105:3–13,
107:20–24, 140:23–24 (1976) (testimony of William K. Harvey). The Committee released an
interim report specifically addressing several CIA planned assassinations, including that of
Castro, which discussed Harvey, his testimony, and his role in those operations. See, e.g.,
Alleged Assassination Plots Involving Foreign Leaders, S. Rep. No. 94-465, at 164–65 (1975).
Given the Church Committee’s interest in Harvey, it seems clear that it would have
considered records reflecting his TDY travel and station or base assignments (both subjects of
Talbot’s request, see Compl. Ex. 6) with respect to the specific operations at issue central to its
investigation. Indeed, the Committee asked Harvey about his travel at the hearing, Hearing
Before the S. Select Comm. to Study Gov’t Operations with Respect to Intelligence Activities,
94th Cong. 63:11–13, 66:11–13 (1976) (testimony of William K. Harvey), and discussed trips he
took for meetings in the interim report it released, Alleged Assassination Plots Involving Foreign
Leaders, S. Rep. No. 94-465, at 83–84 (1975). Thus, the second requirement of the D.C.
Circuit’s three-part test is also met. The Court therefore concludes that a specific, narrow subset
of the possible requested records in operational files—those that would relate to Operation
Mongoose or the Castro assassination plots, during the time period of November 1961 to June
1963—fall within the exception in 50 U.S.C. § 3141(c) and are not categorically exempt from
FOIA.
The other investigations that Talbot points to do not meet the requirements in 50 U.S.C.
§ 3141(c) and thus records associated with those operations remain exempt. For one, the D.C.
Circuit has indicated that the House Select Committee on Assassinations does not meet the
definition of a congressional intelligence committee. Morley, 508 F.3d at 1117. As to the
18
Warren Commission, while Harvey may have been mentioned in witness testimony before the
Commission, he was not a witness himself and his name does not seem to appear once in the
Commission’s 900-page final report. This relative dearth of discussion about Harvey indicates
that any records concerning him were incidental rather than central to the investigation. These
additional investigations that Talbot points to thus do not suffice to place any further requested
records within the scope of 50 U.S.C. § 3141(c).3
To conclude: because Harvey’s activities and involvement with Operation Mongoose
and the Castro assassination plots in 1961 to 1963 were central to the Church Committee
investigation, any responsive records related to those operations contained in the agency’s
operational files fall within 50 U.S.C. § 3141(c) and the CIA must search those files to the extent
necessary to conduct an adequate search. However, other records located within operational files
remain exempt.
The Shiner Declarations suggest that the CIA has not considered whether any responsive
records would even be found in the operational files discussed above because it believed all
records in operational files were exempt wholesale. See, e.g., Decl. of Antoinette B. Shiner ¶ 24
(“The decision to task HR and focus the search on Harvey and Wyatt’s OPFs was informed by
CIA’s knowledge of specific databases and/or files—other than operational files of the CIA
which are exempt from the search, review, publication, and disclosure requirements of the FOIA
. . .”); Suppl. Decl. of Antoinette B. Shiner ¶ 8 (“Again, based on the CIA’s knowledge of
specific databases and/or files, excluding exempt operational files, the CIA determined that the
3
Since the Inspector General of the CIA’s investigation into the Castro assassination plot
concerns the same topic as the Church Committee investigation, the Court need not address
whether that investigation provides a separate basis to conclude that the requested records fall
under 50 U.S.C. § 3141(c).
19
OPF files were the most likely repository of the information Plaintiff sought.”). Consequently,
the Court will require the CIA to either search the operational files for the specific universe of
non-exempt records—those responsive records related to Operation Mongoose or the Castro
assassination during the period of November 1961 to June 1963—or provide an explanation for
why it need not do so to perform an adequate search.4
3. Sufficiency of the Vaughn index
Next, Talbot challenges the sufficiency of the CIA’s Vaughn index. Pl.’s Cross-MSJ at
34–35; see Decl. of Antoinette B. Shiner Ex. L (Vaughn index). In analyzing a Vaughn index’s
sufficiency, the Court’s “focus is on the functions served by the Vaughn index: to organize the
withheld documents in a way that facilitates litigant challenges and court review of the agency’s
withholdings.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 148 (D.C. Cir. 2006). Thus, the
Vaughn index must “adequately describe each withheld document or deletion from a released
document” and must “state the exemption claimed for each deletion or withheld document, and
explain why the exemption is relevant.” People for the Am. Way Found. v. Nat’l Park Serv., 503
F. Supp. 2d 284, 294 (D.D.C. 2007) (citation omitted). An agency is allowed to use a Vaughn
index in conjunction with agency declarations that more fully detail the basis for the claimed
exemptions. Judicial Watch, 449 F.3d at 148.
Here, the Vaughn index includes an entry for every withheld or redacted document, and
each entry provides the nature of the document (e.g., “[m]emorandum regarding reimbursement
4
Counsel for Talbot at the hearing argued that the CIA had not established that the
alleged operational files met the requirement to be operational files. But Talbot did not raise this
argument in his briefing—in fact, the case he cited at the hearing, Judicial Watch v. CIA, 2018
WL 1885665 (D.D.C. April 18, 2018), was decided after the briefing was complete and Talbot
filed no notice of supplemental authority. As such, the argument was forfeited and the Court will
not address it.
20
of expenses” or “[p]ayroll change notice”); the exemption(s) claimed; and a description of the
type of information redacted, either by listing the specific information withheld (e.g., “names” or
“identifying information”) or referencing a category of information described in the Shiner
Declarations (e.g., “cover” or “coding information”). The Shiner Declarations, in turn, explain
why these specific categories of information meet the claimed exemption’s requirements for
withholding. See Decl. of Antoinette B. Shiner ¶¶ 29–33. Finally, the Court is mindful that
many of the redactions involved here relate to intelligence sources and methods, and requiring
more thorough explanations—such as a description of which sources and methods are being
protected, see Pl.’s Cross-MSJ at 39 (faulting the CIA for “provid[ing] no information in regard
to what sources and methods are sought to be protected”)—could risk incurring the harm that the
FOIA exemptions are designed to avoid. For all these reasons, the Court finds that the CIA’s
Vaughn index is sufficient to fulfill its purposes.
4. The CIA’s withholdings
Finally, Talbot challenges the CIA’s withholdings. The CIA asserted withholdings, some
in part and some in full, under three FOIA exemptions: Exemption 1 (for classified information),
Exemption 3 (for records exempt from disclosure by statute), and Exemption 6 (for personal
information). The Court concludes that the CIA’s withholdings were proper.
a. Exemption 3
The CIA withheld several documents in part or in full under Exemption 3, which applies
to records exempted from release under FOIA by another statute, see 5 U.S.C. § 552(b)(3). The
CIA bases its withholdings on two specific statutes: the Central Intelligence Agency Act (“CIA
Act”) and the National Security Act. The CIA Act prevents the disclosure of “the organization,
functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” 50
21
U.S.C. § 3507. The National Security Act broadly directs the Director of National Intelligence
to “protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C.
§ 3024(i)(1). Both statutes have been recognized as valid Exemption 3 statutes. See DiBacco v.
U.S. Dep’t of the Army, 234 F. Supp. 3d 255, 275 (D.D.C. 2017) (CIA Act); CIA v. Simms, 471
U.S. 159, 168 (1985) (National Security Act).
The Court will start with the withholdings under the CIA Act. In her declaration, Ms.
Shiner states that the agency withheld the “names, titles, identification numbers, and information
pertaining to the organization (such as office titles) of CIA personnel” under Exemption 3, since
such information falls under the CIA Act and its release could subject former intelligence
officers and their families to “intimidation or possible physical harm.” Decl. of Antoinette B.
Shiner ¶ 38.
Talbot first challenges these withholdings on the ground that the records are not
“personnel documents,” Pl.’s Cross-MSJ at 39, or “personnel information,” Pl.’s Reply at 14.
This argument is unavailing. The statute specifically protects the disclosure of “names, official
titles, [and] salaries.” 50 U.S.C. § 3507. A perusal of the CIA’s Vaughn index shows this is
precisely the type of information it withheld. See, e.g., Decl. of Antoinette B. Shiner Ex. L
(Vaughn index) entry 6 (redacted names of CIA personnel); id. entry 52 (redacted names of
personnel and employee ID numbers); id. entry 79 (redacted identifying information of CIA
personnel). That such information may not be in a “personnel document” is irrelevant: the
statute nowhere says it applies only to names, titles, and salaries in personnel documents. See,
e.g., DiBacco, 234 F. Supp. 3d at 277.
Talbot also contends that the CIA Act does not apply to former or deceased employees.
Pl.’s Reply at 14. But he cites no authority for this proposition, and the statutory text is to the
22
contrary. It protects the names and titles of personnel “employed by the Agency.” 50 U.S.C.
§ 3507 (emphasis added). A former or deceased employee was still employed by the CIA. Thus,
as other judges in this District have concluded, the plain text of the statute encompasses names
and other information for former or deceased employees. See, e.g., DiBacco, 234 F. Supp. 3d at
277; Hall v. CIA, 881 F. Supp. 2d 38, 66 (D.D.C. 2012). And clearly, the kind of harm that can
flow from the disclosure of such information—exposing CIA personnel and their families to
“intimidation or physical harm,” Decl. of Antoinette B. Shiner ¶ 38—is just as capable of
occurring to former or deceased employees and their families as to current employees and their
families. The CIA has thus justified the withholdings it made under the CIA Act.
Second, the CIA made a series of withholdings pursuant to Exemption 3 in reliance on
the National Security Act.5 Ms. Shiner’s declaration attests that the CIA withheld information
that “concerns intelligence sources and methods.” Id. ¶¶ 36–37. It further details the categories
of withheld information contained in the records—foreign liaison services, locations of and
assignments to permanent overseas field installations, the use of cover and cover methods, and
coding information6—and the harms to national security that would flow from disclosure of such
information, including damage to the U.S. government’s relationship with foreign intelligence
partners, and disclosure of the location of clandestine CIA bases and the agency’s intelligence
methods. Id. ¶¶ 28–34.
5
All of the CIA’s Exemption 1 withholdings were also made under Exemption 3 in
reliance on the National Security Act. See Decl. of Antoinette B. Shiner Ex. L (Vaughn index).
Since the Court concludes that those withholdings were proper under Exemption 3, it need not
address Exemption 1’s applicability.
6
Coding information is “information that, if connected to other information or placed in
the proper context, could reveal the presence of an overseas field installation or the fact that the
CIA utilizes a particular cover mechanism.” Decl. of Antoinette B. Shiner ¶ 33.
23
Talbot’s main challenge to the Exemption 3 withholdings is that the text of the National
Security Act only prohibits unauthorized disclosures and the CIA has not demonstrated that
disclosure here would be unauthorized. Pl.’s Cross-MSJ at 39. Talbot notes that much of the
relevant information is likely no longer classified because of automatic-declassification
provisions for records more than 25 or 50 years old. Id.; see also Pl.’s Reply at 13. “If
information has been declassified,” he argues, “its disclosure is no longer unauthorized.” Pl.’s
Reply at 13.
This argument is unavailing. Talbot cites no authority for the proposition that simply
because information is not classified, any disclosure of that information pursuant to a FOIA
request is authorized. This is not surprising. For one, the mere fact that information is not
classified does not mean that disclosure of that information is automatically authorized. For
another, Talbot’s argument would vitiate the scope of the National Security Act’s protection
under Exemption 3: if the disclosure of unclassified information pursuant to a valid FOIA
request is necessarily authorized, then any protection accorded by the National Security Act
under Exemption 3 would be co-extensive with Exemption 1’s protection for classified
information.
Finally—and most importantly—the statutory text does not comport with Talbot’s
interpretation that declassification automatically makes any disclosure authorized. As the
Supreme Court has recognized, “Congress [did not] state that only confidential or nonpublic
intelligence sources are protected. [The statute] contains no such limiting language.” Sims, 471
U.S. at 169; see also Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990) (“[T]he fact that the
District Court at one point concluded that certain contacts between CIA and the foreign officials
were ‘nonsensitive’ does not help Fitzgibbon because apparently innocuous information can be
24
protected and withheld.”). Ultimately, the question the Court confronts here is whether the
information at issue would disclose intelligence methods and sources. See, e.g., Larson v. Dep’t
of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (the inquiry under Exemption 3 for the National
Security Act is “whether the withheld material relates to intelligence sources and methods.”).
Ms. Shiner’s declarations adequately attest that it would. See Decl. of Antoinette B. Shiner
¶¶ 28–33, 37; Suppl. Decl. of Antoinette B. Shiner ¶¶ 16–17.
b. Exemption 6
In addition to the withholdings under Exemption 3, Talbot challenges the withholdings
the CIA made under Exemption 6. According to Ms. Shiner, the CIA withheld the “names and
personally identifiable information of CIA officers and other individuals found in the responsive
records” under Exemption 6. Decl. of Antoinette B. Shiner ¶ 39. She explains that “the release
of names and other identifying information would be reasonably likely to subject individuals or
those associated with them to increased harassment or threats.” Id. Talbot makes the same
arguments as to these withholdings as he does to the State Department’s Exemption 6
withholdings. See Pl.’s Cross-MSJ at 40. For the reasons discussed above as to the State
Department’s Exemption 6 withholdings, the Court concludes these withholdings were proper.
C. Segregability
Finally, Talbot challenges the agencies’ compliance with the requirement to release any
“reasonably segregable portion of a record,” 5 U.S.C. § 552(b)(9). Pl.’s Cross-MSJ at 40–42.
“Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007). Ms. Shiner attests that the CIA conducted a segregability review and released all
reasonably segregable records. Decl. of Antoinette B. Shiner ¶ 40. Mr. Rolbin similarly attests
25
that the State Department released all reasonably segregable information. Decl. of Johnathan M.
Rolbin ¶¶ 9–12. The burden is on Talbot to proffer contrary evidence to rebut the applicable
presumption. See Sussman, 494 F.3d at 1117 (discussing standards to rebut this presumption).
He has not done so, and, consequently, his challenge to the CIA’s response on this basis fails.
***
For the foregoing reasons, the Court will grant in part and deny in part the agencies’
motion for summary judgment and deny Talbot’s cross-motion. It will grant the agencies
summary judgment except as to the State Department’s search for passport records under
Harvey’s pseudonyms and the CIA’s search of the operational files. On these two points, the
Court will deny both motions without prejudice and require the State Department to conduct a
supplemental search and the CIA to either do the same or justify why no such search is needed.
A separate Order shall accompany this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: June 7, 2018
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