Dibacco v. U.S. Department of the Army , 983 F. Supp. 2d 44 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARON DIBACCO, et al.,
Substitute Plaintiffs for Carl Oglesby,
v. Civil Action No. 87-3349 (CKK)
U.S. DEPARTMENT OF THE ARMY, et
al.,
Defendants.
MEMORANDUM OPINION
(September 26, 2013)
Carl Oglesby filed suit in 1987 challenging several agencies’ responses to a Freedom of
Information Act (“FOIA”) request Mr. Oglesby submitted in August 1985. Since that time, the
case has reached the United States Court of Appeals twice then lay dormant for nearly eleven
years. In December 2011, Aron DiBacco and Barbara Webster, the domestic partner and
daughter of the now-deceased Mr. Oglesby, sought to replace Mr. Oglesby as the Plaintiffs in
this action, which the Court permitted. Only three issues remain for the Court to resolve: (1)
whether the National Security Agency has submitted an adequate Vaughn index; (2) whether the
Central Intelligence Agency and United States Department of the Army conducted an adequate
search for potentially responsive records; and (3) whether the CIA and the Army properly
invoked certain FOIA exemptions. Upon consideration of the pleadings,1 the relevant legal
1
The Court’s analysis focused on the following documents, in chronological order
according to motion: (1) Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. [240];
Pls.’ Opp’n & Cross-Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. [241]; Parties’ Notices of Filing,
ECF Nos. [243, 244]; Defs.’ Reply & Opp’n to Cross-Mot. (“Defs.’ Reply”), ECF No. [246];
Pls.’ Reply, ECF No. [248]; Defs.’ Sur-Reply, ECF No. [254-1]; (2) Pls.’ Mot. to Compel, ECF
No. [249]; Defs.’ Opp’n, ECF No. [251]; Pls.’ Reply, ECF No. [252]; (3) Defs.’ Mot. for Leave
authorities, and the record as a whole, the Court finds the Defendants have met their burden to
show, through detailed declarations and Vaughn indices, that the CIA and the Army conducted
adequate searches for responsive records, and that the NSA, the CIA, and the Army properly
withheld certain information pursuant to various FOIA exemptions. Accordingly, the
Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249]
Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240]
Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion
for Summary Judgment is DENIED.
I. BACKGROUND
Since the early 1970s, [Carl] Oglesby has relentlessly pursued the story of
General Reinhard Gehlen, who served as chief of a Nazi spy ring during World
War II and who allegedly later negotiated an agreement with the United States
which allowed his spy network to continue in existence despite post-war de-
nazification programs. After World War II, his group, then known as the Gehlen
Organization, was reportedly reconstituted as a functioning espionage network
under U.S. command. According to Oglesby, control of the Gehlen Organization
shifted back to the newly-sovereign West German Federal Republic as the BND
(for Bundesnachrichtendienst, or “the Federal Intelligence Service”) after ten
years of U.S. control.
Oglesby v. U.S. Dep’t of Army (“Oglesby II”), 79 F.3d 1172, 1175 (D.C. Cir. 1996). To that end,
between August 21 and September 19, 1985, Carl Oglesby submitted nearly identical Freedom
of Information Act requests to the Central Intelligence Agency, the United States Departments of
the Army and State, the National Security Agency, the Federal Bureau of Investigation, and the
National Archives and Records Administration (“NARA”). Oglesby v. U.S. Dep’t of Army
(“Oglesby I”), 920 F.2d 57, 60 (D.C. Cir. 1990). “[W]ith minor variations,” Oglesby sought the
following records from each agency:
to File Sur-Reply, ECF No. [254]; Pls.’ Resp., ECF No. [255].
2
(1) records on General Gehlen during the period 1944 through 1956;
(2) records on meetings held at Fort Hunt, Virginia, in the summer of 1945
between General Gehlen and U.S. Army General George Strong and Office of
Strategic Services (“OSS”) officer Allen Dulles;
(3) records on the U.S. Army’s “Operation Rusty,” carried out in Europe between
1945 and 1948;
(4) records on post-war Nazi German underground organizations such as
“Odessa,” “Kamaradenwerk,” “Bruderschaft,” “Werewolves” and “Die Spinne”;
(5) records on the OSS’s “Operation Sunrise” carried out in 1945; and
(6) records on Gehlen's relationship with William J. Donovan and Allen Dulles of
the OSS, records on Operation Rusty and Gehlen collected by the Central
Intelligence Group (“CIG”), and records on the Nazi underground organization
“La Arana.”
Id. The agencies released a total of 384 pages, many with redactions, but withheld other
responsive documents. Id. The Army, CIA, NARA, and NSA denied Mr. Oglesby’s request for
a fee waiver. Id. at 61.
Mr. Oglesby filed suit on December 11, 1987. The District Court, per Judge Norma
Holloway Johnson, granted summary judgment in favor of the Defendants. 5/22/1989 Mem. Op.
& Order. On appeal, the D.C. Circuit found that Oglesby had failed to exhaust his administrative
remedies with respect to his requests to the Army, CIA, FBI, NSA, and NARA, but had
constructively exhausted his administrative remedies concerning his request to Department of
State. Oglesby I, 920 F.2d at 59-60. The court remanded the case, instructing Oglesby to
exhaust his remedies, and leaving for the District Court the issue of whether the Department of
State conducted an adequate search in response to Oglesby’s request. Id.Following the Oglesby I decision, Oglesby exhausted his administrative remedies, and
once again challenged the Defendants’ responses. Oglesby II, 79 F.3d at 1176. The District
Court granted summary judgment in favor of the Defendants, concluding that each Defendant
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agency conducted an adequate search for documents and properly withheld information pursuant
to various FOIA exemptions. Id. Mr. Oglesby appealed, challenging (1) NARA’s refusal to
grant Oglesby a fee waiver; (2) the adequacy of the searches conducted by the Army, CIA, FBI,
NSA, and State Department; (3) the adequacy of the Vaughn indices submitted by the Army,
CIA, and NSA; and (4) the CIA’s and Army’s withholding of certain responsive documents. Id.
at 1175. The D.C. Circuit agreed that the CIA and the Army failed to show they conducted
adequate searches, and that the CIA, Army, and NSA failed to adequately justify their
withholdings. Id. The court affirmed the District Court in all other respects. Id. Upon remand,
the Army, CIA, and NSA eventually filed a renewed motion for summary judgment. 9/25/97
Mot. for Summ. J., ECF No. [129]. Just short of one year later, Oglesby filed an opposition to
the Defendants’ motion and cross-moved for summary judgment. 9/14/98 Cross Mot., ECF No.
[176].2
On October 8, 1998, President William Clinton signed into law the “Nazi War Crimes
Disclosure Act,” or “NWCDA.” P.L. 105-246, 5 U.S.C. § 552 note. The act “required the U.S.
Government to locate, declassify, and release in their entirety, with few exceptions, remaining
classified records about war crimes committed by Nazi Germany and its allies.” Nazi War
Crimes & Japanese Imperial Gov’t Records Interagency Working Group (“IWG” or “the
working group”), Final Report to the United States Congress 1 (Apr. 2007). To oversee the
implementation of NWCDA and the Japanese-Imperial Government Disclosure Act of 2000, the
President created an Interagency Working Group, consisting of the Archivist of the United
States, designated representatives of the FBI, the CIA, the National Security Council, the U.S.
2
Pleadings and orders submitted prior to 2006 are not on the electronic docket, but can
be located in the case file maintained by the Clerk of Court.
4
Holocaust Memorial Museum, and the Departments of Defense, Justice, and State, as well as
three public members. Id. Although General Gehlen is not considered a Nazi war criminal, “the
CIA pledged to acknowledge the intelligence relationship with General Gehlen in records
processed for release under the [NWCDA].” Id. at 48. Accordingly, “the CIA approved the
release of the 2,100-page Army Gehlen file, and in addition released nearly 2,100 pages of
materials relating to Gehlen from its own files as well as files on many of Gehlen’s personnel
and agents—including the operational information in all of these files.” Id.While the parties’ cross-motions were pending, the Defendants submitted a declaration
from William H. McNair, the Information Review Officer for the Directorate of Operations for
the CIA, indicating that the Director of Central Intelligence declassified the relationship between
the United States Government and the Gehlen Organization. Pls.’ Opp’n, Ex. 1 (McNair Decl.)
at ¶ 9. In light of the declassification, the CIA indicated it needed to reprocess its previous
releases to Oglesby and its referrals to the CIA from other agencies “because additional
information may now be appropriate for release.” 10/31/00 Status Report, ECF No. [211], at 3.
Unsure of what effect the declassification might have on the Defendants’ motion for summary
judgment with respect to the NSA and the Army, the Defendants withdrew the pending motion
for summary judgment. Id. at 6. Oglesby noted that his cross-motion may also be moot due to
the classification. 11/17/00 Order, ECF No. [214], at 2. The Court thus ordered the Defendants
to file a status report by no later than December 11, 2000, indicating “how much time is needed
to complete its review of responsive material” and “how much time is needed to prepare and file
a Vaughn declaration and accompanying motion for summary judgment.” Id.Pursuant to the Court’s November 2000 Order, the Defendants submitted a status report
indicating that “recent CIA searches conducted in response to the portion of the plaintiff’s FOIA
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request regarding General Gehlen have resulted in locating approximately 251 boxes of material,
and 2,901 folders, with documents that likely contain records regarding General Gehlen.”3
12/11/00 Status Report, ECF No. [215], at 1-2. The Defendants explained that “CIA reviewers
processing documents for release under the NWCDA [would] be most familiar with the material
at issue in plaintiff’s FOIA request,” therefore the CIA proposed “incorporate[ing] the
processing of plaintiff’s FOIA request into the processing of the documents to be reviewed
pursuant to the NWCDA.” Id. at 2. The Defendants suggested this approach would benefit Mr.
Oglesby because “the CIA [would] release responsive documents to the plaintiff as they [were]
released under the NWCDA, instead of waiting until all documents are processed,” as was the
CIA’s general procedure in FOIA cases. Id. The Defendants estimated that the processing of all
responsive documents under the NWCDA would be completed ‘within a year,” but that
“additional documents that go beyond the scope of the Act—which the CIA anticipates
locating—will also need to be processed.” Id. Accordingly, the CIA requested two years in
which to complete its review of documents and to file a Vaughn index. Id. at 3. The parties
discussed many of the issues raised in the Defendants’ status report during a status hearing on
January 9, 2001. Noting that many of the documents were likely to be in German and thus need
translating before processing, the Court asked the Defendants to submit a further status report in
approximately three weeks. 1/9/01 Tr. 18:21-19:2. The Court anticipated that the Defendants
would file additional status reports as the documents were being processed, but advised
Plaintiffs’ counsel that if he was dissatisfied with the pace at which documents were be reviewed
or produced, he should contact the Court and request another status hearing. Id. 20:15-21.
3
During the status hearing on January 9, 2001, the Defendants estimated that the 251
boxes might contain between 251,000 and 775,000 pages of material. 1/9/01 Tr. 4:15-23.
6
In a further status report submitted on February 5, 2001, the Defendants explained that
the CIA had identified “numerous code words associated with Gehlen and the Gehlen
Organization, and conducted a search of the applicable records systems using these code words,”
identifying “a potential universe of over 25,000 responsive documents.” 2/5/01 Status Report,
ECF No. [216] at 2. The CIA intended to conduct another search “within the next two months”
using additional search terms. Id. at 3-4. The agency estimated that the review of all potentially
responsive documents, including referrals to other agencies as necessary, would take two years
to complete, “but because of the many variables, the CIA suggest[ed] that it provide interim
status reports on the CIA’s Progress every four to six months.” Id. at 4. The Court did not issue
any orders in response to the February 2001 status report. In fact, between February 2001 and
December 2011, neither party submitted any documentation to the Court, save notice of change
of addresses for counsel and notices of substitution of counsel for the Defendants.
Nearly eleven years after the Defendants’ last status report, the Plaintiffs filed a motion to
substitute Mr. DiBacco and Ms. Webster as Plaintiffs, which Judge James E. Boasberg granted in
his capacity as the motions Judge. 12/1/11 Mot., ECF No. [224]; 1/5/12 Minute Order. The
Plaintiffs then moved to compel the Defendants to, among other things, describe the searches
conducted for potentially responsive documents, provide copies of all draft status reports created
after February 2001, provide copies of all Vaughn indices submitted to the Plaintiffs since
February 2001, “[l]ist and provide copies of all correspondence which was sent to Carl Oglesby
or his attorney regarding this case subsequent to the February 5, 2001 status report,” and “[l]ist
and provide copies of all records released pursuant to this lawsuit subsequent to the February 5,
2001 status report.” Pls.’ Mot. to Compel, ECF No. [227]. Once the Plaintiff’s motion was fully
briefed, the case was randomly reassigned to the undersigned. 5/30/12 Reassignment of Civil
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Case, ECF No. [237]. The Court promptly denied the Plaintiff’s motion to compel, and ordered
the parties to submit a proposed briefing schedule for dispositive motions. 5/30/12 Minute
Order. The Court adopted the parties’ suggested schedule, and the motions are now ripe for
consideration by the Court.
II. LEGAL STANDARD
Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, in order to “pierce the
veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to
the need to achieve balance between these objectives and the potential that “legitimate
governmental and private interests could be harmed by release of certain types of information.”
Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir.
1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA
“requires federal agencies to make Government records available to the public, subject to nine
exemptions for categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261-62
(2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the act.” Rose, 425
U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be
narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
the agency has sustained its burden of demonstrating that the documents requested . . . are
exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515
F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its
response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden
8
by means of affidavits, but only if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).
“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.” Am. Civil
Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings,
the discovery materials on file, and any affidavits or declarations “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). With these principles in mind, the Court turns to the merits of the parties' cross-
motions for summary judgment.
III. DISCUSSION
A. Miscellaneous Motions
Over a month after filing their Opposition and Cross-Motion, and three days after
submitting their Reply in support of their Cross-Motion, the Plaintiffs filed a motion seeking to
compel the Defendants to disclose four ex parte, classified declarations submitted to the Court in
support of the Defendants’ 1997 renewed motion for summary judgment. Pl.’s Mot. to Compel
at 1. The Plaintiffs cite no legal basis on which the Court may order the Defendants to declassify
and disclose the declarations. Furthermore, the unclassified declarations submitted by the
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Defendants in support of the same motion indicate the classified declarations were maintained in
the possession of the United States Attorney’s Office, but would be available to the Court for
review at the Court’s request. There is no indication that the Court ever sought to review the
declarations or took possession of the classified declarations, and the Court never ruled on the
Defendants’ motion, which was subsequently withdrawn. On the present record, the unclassified
declarations submitted on the issues identified in the Plaintiffs’ motion to compel appear
sufficient to enable the Plaintiffs to respond to the Defendants’ motion for summary judgment.
Absent any legal basis for ordering the Defendants to review and possibly disclose classified
pleadings, the Plaintiffs’ motion to compel is denied.
The Defendants have also moved for leave to file a surreply. The Plaintiffs do not
oppose the motion, but have asked for additional time to file a response to the surreply. In light
of the numerous arguments raised for the first time in the Plaintiffs’ reply brief in support of their
cross-motion—most if not all of which could have and should have been raised in their initial
motion—a surreply from the Defendants would be useful to the Court in resolving the parties’
dispositive motions. However, a further response from the Plaintiffs would be neither useful nor
equitable. Therefore, the Defendants’ motion for leave to file a surreply is granted, and the
Court shall file the Defendants’ proposed surreply in resolving the parties’ cross-motions.
B. Parties’ Cross-Motions for Summary Judgment
The Defendants move for summary judgment regarding all outstanding issues as to the
responses to Oglesby’s FOIA request by the CIA, the Army, and the NSA. The Court begins
with the Plaintiffs’ objections to a report relied on by the CIA and the Army to explain how
records were processed under the NWCDA. Turning to the claims against the CIA, the Court
finds the CIA conducted an adequate search for records, and no genuine dispute remains as to the
10
CIA’s use of certain FOIA exemptions to justify withholding certain information from the
records produced to the Plaintiffs. With respect to the Army, the Court finds the Army’s
decision to transfer its records to the National Archives and Records Administration as part of
NWCDA review process was not suspect, therefore the Army is entitled to summary judgment
on the grounds it has not wrongfully withheld any responsive records. Finally, the Plaintiffs fail
to raise a genuine dispute as to the adequacy of the Vaughn declaration submitted by the NSA.
Accordingly, the Court grants summary judgment in favor of the Defendants on all outstanding
claims.
Initially, the Plaintiffs take issue with the Defendants’ reliance on the IWG Report to
establish the scope of documents reviewed in connection with the NWCDA. Federal Rule of
Evidence 803(8) provides, in relevant part, that a record or statement of a public office is not
excluded under the rule against hearsay so long as the record (A) sets out the office’s activities or
a matter observed while under a legal duty to report, and (B) neither the source of information
nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)-(B). The
Plaintiffs do not dispute that because the IWG Report was created pursuant to the group’s legal
obligation to report to Congress, the report satisfies the requirements of Rule 803(8)(A). Pub. L.
105-246 § 2(c)(3) (requiring the IWG to “submit a report to Congress . . . describing all such
records, the disposition of such records, and the activities of the [IWG] and agencies under this
section”). However, the Plaintiffs contend the report is unreliable because of the following
statement from the cover letter accompanying the report:
In order to avoid further delay of the release of this report, members of the IWG
did not seek unanimous agreement on a single “official” version of their
declassification effort. Instead, this report presents the larger issues that arose
while affording participants an opportunity to present personal or institutional
perspectives on issues important to them and to those whom they represent.
11
These appear in a separate chapter at the end of the report
IWG Report at v (Apr. 2007 Ltr. from A. Weinstein). Nothing in this statement “raises
concerns” regarding the trustworthiness of the report as the Plaintiffs suggest. If an agency or
IWG member disagreed with the description of the agency’s response to the NWCDA provided
in the report, they could address those issues in the final chapter report. For example, Elizabeth
Holtzman, one of the public members of the IWG, indicates that although the CIA was reluctant
to declassify large swaths of documents, but “is not in full compliance with the law and is giving
[the IWG] all the material [the IWG] believe[s] is relevant” under the NWCDA. Id. at 93. The
Plaintiffs offer no other evidence to suggest the IWG Report description of the processing of
documents by the Army or the CIA is not credible. Therefore, the Court finds the IWG Report to
be proper non-hearsay evidence pursuant to Rule 803(8).4
Citing Federal Rule of Civil Procedure 56(e), the Plaintiffs’ also suggest the report cannot
be used as evidence regarding the adequacy of the Defendants’ searches because the report was
not made under oath. Pls.’ Cross-Mot. at 19-20. It appears the Plaintiffs intended to cite Rule
56(b)(4), which provides that “[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(b)(4). Nothing in Rule 56 requires that evidence be submitted only in the form of an
affidavit, so long as the evidence can be presented in a form that would be admissible at trial.
4
In a footnote in their Reply brief, the Plaintiffs imply that certain statements in the IWG
are not admissible because they are not “factual findings.” Pls.’ Reply at 4 n.2. The Plaintiffs
appear to be referring to Federal Rule of Evidence 803(8)(A)(iii), which provides that in a civil
case or against the government in a criminal case, “factual findings from a legally authorized
investigation” are not barred as hearsay. The Defendants do not rely on subsection (iii) to
establish the admissibility of the IWG report, making the Plaintiffs’ argument irrelevant.
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1. Central Intelligence Agency’s Search for Responsive Records
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At
summary judgment, a court 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.” Ancient Coin Collectors Guild, 641 F.3d at 514(citation omitted). “The agency cannot limit its search to only one or more places if there are
additional sources that are likely to turn up the information requested.” Valencia-Lucena, 180
F.3d at 391 (citation omitted). Ultimately, the adequacy of a search is “determined not by the
fruits of the search, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).
A five person team from the CIA conducted a page-by-page review of 1.2 million pages
of OSS records, that is, records from the wartime and immediate post-war period. Defs.’ Ex. D
(IWG CIA Excerpt) at 45. The CIA “opened its OSS records in their entirety,” and consulted
with foreign governments to clarify the sensitivity of foreign government information rather than
automatically withholding such information, as was the CIA’s usual practice. Id. Utilizing
search terms suggested by historians and staff from the CIA and IWG, as well as interviews with
former OSS and CIA personnel, the agency also conducted searches of electronic and manual
indices of the CIA-era records (post-1947). Id. The CIA conducted a line-by-line
declassification review of the relevant files, and conducted further searches based on information
located within the files being reviewed. Id. at 45-46. Prior to 2005, the CIA utilized a narrow
definition of relevance, and “maintained that files were subject to the act[] only if they contained
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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.” Id. at 47.
Under this approach, the CIA declassified and released approximately 50,000 pages of
documents. Id. at 49. However, in February 2005 the CIA shifted course, and agreed to, among
other things, “[d]eclassify information on individuals connected to the Nazis whether war
criminals or not,” “[d]eclassify and release operational project files where Nazis were involved,”
and “[u]ndertake additional searches that the IWG historians or CIA thought necessary.” Id. at
50. As a result, the agency revised the redactions to 47,400 pages, and released over 65,000 new
pages. Id. All told, the agency released approximately 114,200 pages of CIA-era records.
Defs.’ Ex. E (First Lutz Decl.) ¶ 13.5 On May 14, 2012, the CIA provided plaintiffs’ counsel
with seven disks containing all CIA records released pursuant to the NWCDA. Id. ¶ 12. The
cover letter provided with the disks explained how the records were organized and identified
where on the disks records relating to Reinhard Gehlen and the Gehlen Organization’s
relationship to the United States Government could be located. Id.
In order to comply with the NWCDA, the CIA conducted a search for records far more
expansive than searches usually undertaken in responding to FOIA requests. All directorates
were instructed to search for relevant documents, using both name and codeword searches. For
example, with respect to documents concerning General Gehlen, the CIA searched for files
retrievable by name, in addition to conducting searches for codewords, aliases, and cryptonyms
for Gehlen and his organization. First Lutz Decl. ¶ 16. Ultimately the CIA released
approximately 2,100 pages of material relating to Gehlen. Id. ¶ 17. Ms. Lutz avers that, based
5
Martha Lutz is the Chief of the Litigation Support Unit for the Central Intelligence
Agency. First Lutz Decl. ¶ 1.
14
on the breadth and thoroughness of the CIA’s search for responsive documents, the searches
performed in response to the NWCDA were reasonably calculated to discover any records
responsive to Oglesby’s request. Id. ¶ 18.
The Plaintiffs raise a number of objections to the search performed by the CIA, none of
which have merit. First, the Plaintiffs note that in its December 11, 2000, status report, the CIA
explained that it anticipated locating documents potentially responsive to Oglesby’s request that
were beyond the scope of the NWCDA. 12/11/00 Status Report at 2. Ms. Lutz explains that this
statement was based on CIA’s initial, narrow interpretation of its obligations under the NWCDA
insofar as the CIA believed it would not be required to produce documents relating to General
Gehlen under the NWCDA because General Gehlen is not considered a war criminal. Defs.’
Reply Ex. D (Second Lutz Decl.) ¶ 4. In 2005, the CIA elected to review and declassify
information regarding all Nazis (not just war criminals), including operational files concerning
those Nazis. Id. (emphasis added). “As a result, all Gehlen related records responsive to
Oglesby’s request fell within the scope of NWCDA and all were released in whole or in part
under the NWCDA and provided to Plaintiffs.” Id. The Plaintiffs fail to raise a genuine issue of
material fact with respect to the scope of Oglesby’s request vis a vis the CIA’s release of
documents pursuant to the NWCDA.
Second, the Plaintiffs take issue with the fact that the Lutz Declaration does not explicitly
indicate that the records of all directorates were searched. Pls.’ Cross-Mot. at 30-31. Ms. Lutz
explained in her initial declaration that “[a]ll CIA records are maintained by one of four
directorates and the independent offices and other entities under the Director, Central
Intelligence Agency (D/CIA): the National Clandestine Service (NCS), Directorate of
Intelligence (DI), Directorate of Science and Technology (DS&T), Directorate of Support (DS),
15
and the Director’s Area.” First Lutz Decl. ¶ 14. “All directorates were tasked to search for such
records, with the CIA’s Nazi War Crimes Task Force overseeing the search and review of these
records.” Id. ¶ 15 (emphasis added). Moreover, the NWCDA
expressly precluded agencies from invoking Sec. 701(a) of the National Security
Act of 1947, as amended, which exempts operational files designated by the
Director of the CIA from the search and review requirements of the FOIA. Thus,
CIA’s records search under the NWCDA included searches of all operational files
reasonably likely to contain responsive information. Indeed, the majority of the
records located were from operational files.
Second Lutz Decl. ¶ 7. Thus, the Plaintiffs’ argument lacks merit.
Third, the Plaintiffs argue that the CIA’s failure to release any documents regarding
meetings between the United States and General Gehlen at Fort Hunt demonstrates the CIA’s
search was inadequate. Pls.’ Cross-Mot. at 15-16. To be clear, Oglesby did not request all
records concerning Fort Hunt; rather he requested only “records on meetings held at Fort Hunt,
Virginia, in the summer of 1945 between General Gehlen and U.S. Army General George Strong
and Office of Strategic Services (“OSS”) officer Allen Dulles.” The D.C. Circuit addressed this
precise argument:
Appellant also contends that the search was unreasonable because the agency did
not find responsive documents that appellant claims must exist, namely,
documents concerning the meeting at Fort Hunt. However, appellant provides no
proof that these documents exist and his own conviction that the Fort Hunt
meeting was of such importance that records must have been created is pure
speculation. Such hypothetical assertions are insufficient to raise a material
question of fact with respect to the adequacy of the agency’s search.
Oglesby I, 920 F.2d at 68 n.13. The only new evidence6 proffered by the Plaintiffs is two articles
6
The “evidence” cited by the Plaintiffs for the proposition that transcripts of bugged
conversations from General Gehlen’s quarters pre-dates Oglesby I, thus the Court assumes this
information was presented to the D.C. Circuit. Pls.’ Cross-Mot. at 16. In any event, the
Plaintiffs failed to provide either of the documents cited on page 16 to the Court in connection
with the present motion practice.
16
published in 2006 and 2011, reporting that Fort Hunt was used as a secret prison camp where
German scientists and soldiers were incarcerated and interrogated during World War II. Pls.’
Ex. 4 (Petula Dvorak, A Covert Chapter Opens for Fort Hunt Veterans, Wash. Post, Aug. 20,
2006); Pls.’ Ex. 5 (Emma Brown, GWU Professor Extracted Nazi Secrets, Wash. Post, July 19,
2011, at B5). Neither article supports the contention that documents regarding the specific
meeting identified in Mr. Oglesby’s request exist, and fall far short of creating a genuine issue of
fact with respect to the adequacy of the CIA’s search for documents.
Finally, the Plaintiffs argue the CIA should be required to conduct additional searches for
the terms “Fort Hunt,” “P.O Box 1142,”7 and “GO,” an abbreviation for the Gehlen
Organization. As set forth above, the Plaintiffs failed to raise a genuine issue as to whether
records exist regarding the specific meetings at Fort Hunt at issue in the Plaintiffs’ request, thus
there is no reason to believe searching for the terms “Fort Hunt” and/or “P.O. Box 1142” would
be likely to locate additional responsive documents. Nor do the Plaintiffs offer any evidence to
suggest a search for the term “GO” would uncover responsive documents not located by previous
searches. Accordingly, the Court finds the CIA has met its burden to show that the agency’s
search was reasonably calculated to uncover all relevant documents.
2. Central Intelligence Agency’s Withholdings
As the Vaughn index attached to Ms. Lutz’s declaration indicates, the CIA withheld
certain information pursuant to FOIA exemptions (b)(1) and (b)(3). See Attach. to First Lutz
Decl. Counsel for the Plaintiffs objected to the CIA’s Vaughn index on the grounds counsel was
unable to correlate the entries on the index to the records provided to counsel. Pls.’ Cross-Mot.
at 40. Although the Defendants argue that the Plaintiffs could have utilized the initial Vaughn
7
P.O. Box 1142 was the codename for Fort Hunt. See Pls.’ Exs. 4, 5.
17
index using the letter that accompanied the disks containing the documents provided by the CIA.
Defs.’ Reply at 16-17. Nevertheless, the CIA provided a revised Vaughn index, including
references to the relevant pdf numbers on the disks. Second Lutz Decl. ¶ 9. The CIA also
provided a supplemental index addressing the 66 documents discussed by the Plaintiffs for the
first time in their motion to compel. Defs.’ Opp’n to Mot. to Compel, Ex. A (Fourth Lutz Decl.)
¶ 7. Therefore, the Court considers whether the CIA is entitled to summary judgment in light of
the revised and supplemental Vaughn indices.
Exemption (b)(1) provides that agencies may withhold any information “(A) specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). Exemption (b)(3) permits an agency to withhold
information “specifically exempted from disclosure by statute (other than section 552b of this
title),” if the relevant statute
(A) (i) requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular
types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.
Id. § 552(b)(3). The Court addresses each of the exemptions in turn.
a. Exemption (b)(1)
The CIA identifies four categories of information that it contends is properly classified
and thus exempt from disclosure under FOIA exemption (b)(1): (1) the true names of covert CIA
employees; (2) names of clandestine human intelligence sources and information that could be
used to identify clandestine human intelligence sources; (3) cities and countries in which the CIA
18
maintained covert installations; and (4) information regarding specific intelligence methods,
including cover mechanisms. First Lutz Decl. ¶ 29. Ms. Lutz determined that the withheld
information “is currently and properly classified” pursuant to Executive Order 12958, the
Executive Order in effect at the time the CIA’s NWCDA task force reviewed the documents and
decided the information should remain classified. Id. ¶ 21. “Summary judgment may be granted
on this issue on the basis of agency affidavits [only] if they contain reasonable specificity of
detail rather than merely conclusory statements, and ... they are not called into question by
contradictory evidence in the record or by evidence of agency bad faith.” Public Citizen v. Dep’t
of State, 276 F.3d 634, 644 (D.C. Cir. 2002).
The Plaintiffs contend that Ms. Lutz’s declaration is insufficient to justify the agency’s
use of FOIA exemption (b)(1) because Ms. Lutz does not aver that the information is properly
classified under Executive Order 13526. Executive Order 13526, signed by President Barack
Obama on December 29, 2009, currently governs classification decisions. This Order defines
“classified information” to include “information that has been determined pursuant to this order
or any predecessor order to require protection against unauthorized disclosure.” E.O 13256
§ 6.1(i).
A district court may, upon request by an agency, permit the agency to apply a
superceding [sic] executive order during the pendency of FOIA litigation.
However, absent a request by the agency to reevaluate an exemption 1
determination based on a new executive order, 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. This rule prevents undue delay and burden in the resolution of FOIA
claims by introducing an element of finality into agency decisionmaking.
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 29 (D.C. Cir. 1998) (citations omitted). The
Campbell court explained that the relevant question is whether the 2009 Executive Order “calls
prior classification decisions under the [prior] Order into question.” Id. Like the superseding
19
order in Campbell, Executive Order 13256 “does not permit FOIA litigants to reopen
classification decisions finalized before the Order’s effective date” because the superseding
Order “defines classified information to include information classified under prior orders,” and
“does not contain any provision that requires an agency to reconsider classification decisions in
pending FOIA litigation.” Id.The Plaintiffs cite Campbell for the proposition that “D.C. Circuit cases have consistently
held that where a case has been remanded to [sic] district court, review should occur under the
new executive order.” Pls.’ Cross-Mot. at 33. The Campbell court rejected the FBI’s declaration
as insufficient to justify its use of exemption (b)(1), and noted that
In preparing a new declaration on remand, the FBI’s new declarant . . .
presumably must re-review the redactions and withholdings. This rule is
consistent with our reasoning in Lesar: when an agency has completed a FOIA
review, principles of finality weigh against ordering a new review under a new
order, but when a court orders a new review on other grounds, respect for the
President’s authority to define national security priorities requires that the new
review proceed under current law rather than the superceded law of a prior
administration.
Id. at 31 (citing Lesar v. U. S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980)). Here, the D.C.
Circuit did not instruct the Court to reevaluate the CIA’s classification decisions upon remand.
To the contrary, the D.C. Circuit upheld the CIA’s application of exemption (b)(1) with respect
to the documents listed in the Vaughn index, and only remanded the case to the extent the CIA
failed to include certain documents in the index in the first place. Oglesby II, 79 F.3d at 1182-
83.
For the first time in their Reply, the Plaintiffs suggest that Executive Order 13256 should
govern the use of exemption (b)(1) in this case because Ms. Lutz’s review of the documents took
place while Executive Order 13256 was in effect. The D.C. Circuit explained
20
when an agency first receives a FOIA request, it may wish to reevaluate its initial
classification decision to determine whether the materials requested require
declassification or reclassification at a higher level, if circumstances so dictate.
The agency looks to the procedures and substantive criteria contained in the
Executive Order then in force rather than those found in the Executive Order
under which the initial classification decision was made. On review, the court
should also assess the documents according to the terms of the Executive Order
under which the agency made its ultimate classification determination.
Lesar, 636 F.2d at 480. The agency made its ultimate determination regarding the documents at
issue in this case between 2005 and 2007. Second Lutz Decl. ¶ 8. Thus, the question for the
Court is whether the agency properly determined the information was classified and thus exempt
from disclosure under the Executive Order in force during that time frame, namely Executive
Order 12958. Ms. Lutz’s declarations provides support for the agency’s position, but the agency
reached a final determination with respect to this information years before the litigation reached
this stage.
With respect to the substance of the agency’s application of exemption (b)(1), the
Plaintiffs proffer only two arguments. First, the Plaintiffs argue that the agency failed to take
into consideration “the passage of time.”8 The D.C. Circuit rejected this argument once before:
Oglesby has not demonstrated that an agency's national security concerns
automatically disappear with the passage of time, and therefore has not rebutted
the affidavits stating that the material had been reviewed at the time of the
request, and had been determined to pose a current threat to national security if
released.
Oglesby II, 79 F.3d at 1183. The Plaintiffs once again have “merely made the naked assertion
that the passage of time renders the national security claims questionable.” Id.8
Apart from the Plaintiffs’ disagreement regarding what Executive Order controls the
classification decision, the Plaintiffs fail to articulate how Ms. Lutz’s declarations have been
“controverted by contrary evidence.” Pls.’ Reply at 15.
21
As long as an agency declares through its affidavits that the responsive material
has been reviewed to assure the continuing accuracy of its original classification,
and that a determination has been made that the withheld information still poses a
security risk if released, the mere passage of time is not a per se bar to reliance on
exemption 1.
Id. This is particularly true in this case, where much of the information withheld under
exemption (b)(1) may expose locations and techniques still utilized by the agency. Second, for
the first time in their Reply the Plaintiffs argue that the documents were not properly classified
under Executive Order 12958 because they do not contain the classification markings required
by section 1.7 of that Order. Pls.’ Reply at 9. Section 1.7(f) of Executive Order 12958
specifically provides that “[i]nformation 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.” The documents at issue in this case were marked
according to the requirements in place at the time the documents were initially classified,
generally between 1951 and 1954. Third Lutz Decl., ECF No. [254-2], ¶ 9. Ms. Lutz’s
unrebutted declaration establishes with a reasonable level of specificity that the information at
issue was properly classified and marked under Executive Order 12958, and thus was properly
withheld under FOIA exemption (b)(1). Therefore, the agency is entitled to summary judgment
on this issue.
b. Exemption (b)(3)
Invoking FOIA exemption (b)(3), the CIA argues that it properly withheld certain
information as provided by the National Security Act of 1947, as amended, 50 U.S.C.
§ 3024(i)(1), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507. The National
Security Act provides that “[t]he Director of National Intelligence shall protect intelligence
sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). “The Director may
22
only delegate a duty or authority given the Director under this subsection to the Principal Deputy
Director of National Intelligence.” Id. § 3024(i)(3). The relevant provision of the CIA Act
provides that the CIA shall be exempt from disclosing “the organization, functions, names,
official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 3507.
The Plaintiffs argue that because the National Security Act vests the power to protect
intelligence sources and methods in the Director of National Intelligence, the CIA cannot rely on
this statute to withhold information regarding intelligence sources and methods pursuant to FOIA
exemption (b)(3). Judge Beryl A. Howell thoroughly analyzed this issue and ultimately rejected
an identical argument in Mobley v. CIA, 924 F. Supp. 2d 24 (D.D.C. 2013). For the reasons
stated by Judge Howell in Mobley, 924 F. Supp. 2d at 53, and as recognized by the D.C. Circuit
in Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009), the Court finds that
agencies other than the Director of National Intelligence may rely upon the National Security Act
to withhold information regarding intelligence sources and methods pursuant to FOIA exemption
(b)(3). The Plaintiffs do not otherwise challenge the CIA’s use of exemption (b)(3). Based on
the detailed description of the information withheld pursuant to this exemption provided in the
First Lutz Declaration, the Court finds there is no genuine dispute that the CIA properly invoked
FOIA exemption (b)(3) in this case.
3. Army’s Search for Responsive Records
During the initial stages of this litigation, the Army produced an estimated 1,240 pages of
information to Oglesby. See generally Third Nichols Decl., Attach. B., ECF No. [124].9 Prior to
the enactment of the NWCDA, the Army had transferred most of its World War II combat and
9
Mr. Nichols, then the Chief of the Freedom of Information/Privacy Office for
INSCOM, submitted the declaration in support of the Defendants’ motion for summary judgment
in 1997. Third Nichols Decl., ECF No. [124], ¶ 1.
23
operational documentation to NARA. Defs.’ Ex. A (IWG Report, Army Excerpt) at 52. Thus,
the Army’s response to the NWCDA focused on the classified intelligence and
counterintelligence records maintained by the Intelligence and Security Command (“INSCOM”)
Investigative Records Repository at Fort Meade, Maryland. Id. These “IRR” files generally
concerned three topics: (1) “foreign personnel and organizations”; (2) “intelligence and
counterintelligence sources”; and (3) “counterintelligence security investigations.” Id. The
records were comprised of 13,000 reels of 35mm microfilm (holding approximately 1.3 million
files), and approximately 460,000 individual paper files, all of which had to be searched. Id. In
order to process the documents,
the Army scanned the microfilm to create digitized images of the files, which it
then searched electronically for relevant files using the 60,000 Names List. The
Army then reviewed and declassified the files identified as relevant and turned
them over to the National Archives as digitized images. Simultaneously, IRR
staff conducted a manual review of the files that the Army still maintained in
paper form.
Id. at 54. Between 2000 and 2001, the Army provided NARA with over 20,000 digitized and
paper files located in response to searches for individuals on the Names List. Id. “While the vast
majority of the files were declassified in full, the Army had redacted limited portions, primarily
foreign government information or intelligence sources and methods.” Id. “After it finished
digitizing its files, IRR staff undertook further searches as the IWG staff, IWG historians, and
other participating agencies identified additional relevant names, projects, and operations that
came to their attention during the course of their work.” Id. The Army eventually transferred
copies of all 1.3 million microfilm files to NARA. Defs.’ Ex. B (Murphy Decl.) ¶ 12(d). The
Army did not retain any copies of the files transferred to NARA. Defs.’ Reply Ex. B (Second
Dorris Decl.) ¶ 5.
Once the files were transferred to NARA, the NARA staff conducted searches using a
24
variety of keywords, outlined in paragraphs 13, 15, and 16 of the Declaration of Martha Wagner
Murphy, the Chief of the Special Access and Freedom of Information Branch, Research
Services, for NARA. Murphy Decl. ¶ 1. The searches did not locate any responsive records
regarding the relevant meetings at Fort Hunt, id. ¶ 14, but NARA located a number of other
responsive documents, which are listed in paragraph 17 of Ms. Murphy’s Declaration. Ms.
Murphy indicates that “electronic image files identified [in the declaration] are available for
public inspection at NARA’s headquarters,” but if the Plaintiffs agreed to pay duplication fees,
the files would be copied and mailed to the Plaintiffs. Id. ¶ 18. INSCOM also searched its
remaining hard copy and electronic files but failed to locate any documents responsive to
Oglesby’s request. Defs.’ Reply Ex. B (Second Dorris Decl.) ¶ 6.
The Plaintiffs argue the Army’s search was inadequate, for two reasons. First, the
Plaintiffs note that the declaration submitted by Bradley Dorris, the Director of the Freedom of
Information Act/Investigative Records Repository Office at INSCOM, states that “[t]he records
most likely responsive” to Oglesby’s request would have been in the IRR at INSCOM, but does
not state that all responsive documents were likely to be located at the IRR. Defs.’ Ex. C (Dorris
Decl.) ¶ 6. Mr. Dorris subsequently clarified that
The records which would be responsive to the FOIA requests would have been in
the Investigative Records Repository at INSCOM. However, all of these records
were transferred to NARA. I am unaware of any other locations of any records
related to the subject FOIA request. Due to the fact that the requested records
were intelligence files in nature, the only location the documents would be located
would be at INSCOM. INSCOM is the only Army intelligence records
repository. The files would not be retained by any other Army agencies.
Second Dorris Decl. ¶ 7. The Plaintiffs suggest that Mr. Dorris’s “credibility is damaged” due to
the change in his supplemental declaration. Pls.’ Reply at 4. If Mr. Dorris had submitted a new
declaration merely parroting the relevant standard, the Court might agree that the supplemental
25
declaration would be insufficient. But Mr. Dorris’s second declaration goes beyond mere
recitation, and describes why, based on the nature of the information requested by Oglesby, any
responsive documents would have been maintained in the IRR files transferred to NARA. The
Plaintiffs offer no evidence to contradict or call into question Mr. Dorris’s supplemental
statement that any documents responsive to the Plaintiffs’ request would likely be found in the
IRR files.10
Second, the Plaintiffs argue that the Army’s transfer of documents to NARA violated the
Freedom of Information Act. “The FOIA provides a claimant with a remedy only against an
agency that has ‘improperly withheld’ a record.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1201 (D.C. Cir. 1991) (quoting 5 U.S.C. § 552(a)(4)(B)). Thus, “[i]f the agency is no longer in
possession of the document, for a reason that is not itself suspect, then the agency is not
improperly withholding that document and the court will not order the agency to take further
action in order to produce it.” Id. (emphasis added). Here, the Army’s transfer of documents is
anything but suspicious. The NWCDA specifically ordered that agencies make relevant
documents available to the public at the National Archives and Records Administration. Pub. L.
105-246 § 2(c)(1). The Army did not transfer only those documents potentially responsive to
Oglesby’s request, rather it transferred all combat and operational files related to World War II.
Second Dorris Decl. ¶ 5. Moreover, NARA conducted an extensive search for responsive
documents, and has made those documents available for the Plaintiffs to review or copy (at the
10
The Plaintiffs note that Martha Murphy averred that “the most likely untapped location
for finding Army documents responsive to the NWCDA” were the IRR files. Murphy Decl. ¶
10. The scope of information to be reviewed under the NWCDA was broader than and in some
ways distinct from the topics identified in Mr. Oglesby’s request. Without more, Ms. Murphy’s
statement is not inconsistent with Mr. Dorris’s averments regarding where documents responsive
to Oglesby’s request were likely to be located.
26
Plaintiffs’ expense). This is not a situation in which the agency destroyed documents or
otherwise made them unavailable to the requesting party. Cf. Chambers v. Dep’t of Interior, 568
F.3d 998, 1004 (D.C. Cir. 2009) (“Thus, summary judgment is inappropriate, as the Government
all but acknowledged, if, viewing all inferences in a light most favorable to Chambers, a triable
issue exists as to whether Murphy (or any one [sic] else at Interior) intentionally destroyed the
appraisal Chambers requested.”). The fact that the Army produced over 1,420 pages of
information to Oglesby prior to 1997 and did not transfer the IRR files to NARA until nearly
sixteen years after the receipt of Oglesby’s request undermines any suggestion that the transfer
was motivated by a desire to avoid complying with the Army’s statutory obligations under the
FOIA. Drawing all inferences in favor of the Plaintiffs, no reasonable trier of fact could find that
the Army destroyed or attempted to prevent the Plaintiffs from accessing documents relevant to
Oglesby’s request by transferring all World War II related files to NARA. The record indicates
the motivation behind the Army’s transfer of documents is not itself suspect. Therefore, the
Army is entitled to summary judgment on the grounds it has not improperly withheld any records
responsive to Oglesby’s request.
4. National Security Agency’s Vaughn Declaration
After conducting a search for potentially responsive documents, the National Security
Agency identified fifteen documents containing information responsive to Oglesby’s Request.
See generally Defs.’ Ex. G (Grantham Decl.) ¶¶ 14-42. Four of the documents were released in
their entirety by the NSA to Oglesby, two documents were withheld in their entireties, one
document was referred to the Army for review, and the remaining documents were produced
with redactions. Id. In support of its motion for summary judgment following Oglesby I, the
NSA submitted two declarations from Michael Smith, then the Director of Policy for the
27
National Security Agency, describing in very general terms the withheld information and the
bases for the withholdings. Defs.’ Ex. F (NSA Decls.) at 1-6, 13-16. The D.C. Circuit found
Mr. Smith’s declarations to be inadequate to justify the withholdings, noting that the declarations
contain
only sweeping and conclusory assertions that the agency withheld the documents
because they contained material which could reasonably be expected to cause
damage to national security. The affidavits offer no functional description of the
documents; NSA has failed to disclose the types of documents, dates, authors,
number of pages, or any other identifying information for the records it has
withheld.
Oglesby II, 79 F.3d at 1183. The D.C. Circuit remanded the Oglesby’s claim against the NSA to
this Court, and indicated the Court “should order NSA to submit an index describing the
documents to the greatest extent possible without disclosing information that must be protected.”
Id.The NSA now submits a detailed declaration executed in February 1997 by Gary L.
Grantham who at that time was the Acting Director of Policy for the NSA. Grantham Decl. ¶ 1.
Mr. Grantham’s declaration describes each of the fifteen documents in detail, including the
number of pages, agency responsible for drafting the document, the title of each document (if
applicable), and a detailed description of the factual information released and withheld from each
document. See, e.g., id. ¶¶ 17-19. Grantham’s declaration identifies how many pages were
found to be non-responsive, how many pages were withheld in their entirety, and how many
pages were released in part. E.g., id. ¶ 17. Finally, where appropriate, Grantham avers that the
withheld information was properly classified pursuant to Executive Order 12958, and that release
of the information could be expected to lead to the unauthorized disclosure of intelligence
sources, methods, and foreign government information. E.g., id. ¶ 19. The NSA also submitted
a declaration from Diane M. Janosek, the Deputy Associate Director for Policy and Records for
28
the NSA, signed in December 2012. Defs.’ Ex. H (Janosek Decl.) ¶ 1. Ms. Janosek explains that
the information withheld from the documents at issue in the Grantham declaration, “was and
remains currently and properly classified [] in accordance with [Executive Order] 13526.” Id.
¶¶ 3, 20.
The Plaintiffs’ opposition and cross-motion omits any reference to the Grantham
declaration or the Defendants’ motion for summary judgment with respect to the NSA’s
withholdings, and on that basis alone the Court may grant this portion of the Defendants’ motion.
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003)
(“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”). For the first time in their Reply, the
Plaintiffs raise four arguments in opposition to the NSA’s motion, none of which are persuasive.
First, the Plaintiffs argue that the Grantham Declaration is inadequate because it does not
contain a Vaughn Index. This argument is nonsensical. The Grantham Declaration attached to
the Defendants’ Renewed Motion for Summary Judgment filed on December 14, 2012, describes
in detail each of fifteen documents identified by the NSA as containing information responsive to
Oglesby’s request. Second, the Plaintiffs further suggest the Grantham Declaration is
insufficient because “the NSA has made other releases which appear to consist of documents not
part of the [Grantham Declaration].” Pls.’ Reply at 22. Specifically, the Plaintiffs point to a
letter from the NSA to counsel for Mr. Oglesby dated January 17, 1992, which, as part of
Oglesby’s administrative appeal of the NSA’s response to his request, explains that certain
portions of a document have been withheld as non-responsive or as exempt. Pls.’ Reply Ex. B
(1/17/92 Ltr. & Attach.). The letter attaches eighteen pages with markings indicating certain
29
redactions were for non-responsive information, while other redactions omitted exempt
information. See generally id. at 3-20. The pages come from at least two different documents,
and on their face correlate with portions of documents 3 and 5 as set forth in the Grantham
declaration. Cf. Pls.’ Reply Ex. B at 4 (dated June 14, 1954) with Grantham Decl. ¶ 20; cf. Pls.’
Reply Ex. B at 8 with Grantham Decl. ¶¶ 26-27. The Plaintiffs failed to proffer a sufficient basis
from which the Court could conclude the Grantham declaration failed to reference any of the
documents produced (even in part) to Oglesby.
Third, the Plaintiffs contend that the Grantham declaration is inadequate because it was
signed in 1997 and thus does not establish that release of the withheld information today could
reasonably be expected to cause damage to national security. Pls.’ Reply at 22. This argument
completely ignores the Janosek Declaration, executed in December 2012, which explains both
that the withheld information is properly classified under the Executive Order that has governed
classification since 2009, and that release of the information in the present could reasonably be
expected to damage national security. Janosek Decl. ¶¶ 3, 20.
Fourth and finally, the Plaintiffs seem to suggest that the “‘document-by-document’ review
performed by Grantham . . . is [inconsistent] with the rigors of the segregability analysis
required.” Pls.’ Reply at 23. “An agency cannot justify withholding an entire document simply
by showing that it contains some exempt material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir.
213) (citation omitted). “[E]ven if the agency establishes an exemption, it must nonetheless
disclose all reasonably segregable, nonexempt portions of the requested record(s).” Roth v. U.S.
Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir. 2011) (citation omitted); see also 5 U.S.C.
§ 552(a)(4)(B). The agency is entitled to a presumption that it complied with the obligation to
disclose reasonable segregable material. Hodge, 703 F.3d at 583. The Plaintiffs offer no
30
evidence to rebut Grantham’s averment that all reasonably segregable information has been
produced to the Plaintiffs. The fact that the “major redactions have been made” to some of the
pages produced to Oglesby is not at all surprising given the subject matter of the documents; one
could reasonably expect that details of the United States’ signal intelligence would properly
remain classified years after any particular document was created. Moreover, the Grantham
Declaration reflects the fact that in reviewing the documents for purposes of drafting the
declaration, Mr. Grantham determined additional information in four documents was segregable,
and released it to Mr. Oglesby. Grantham Decl. ¶¶ 34, 36, 38, 40. The extent of the redactions
itself is insufficient to overcome the presumption that the NSA complied with its segregability
obligations. Hodge, 703 F.3d at 582.
In sum, the Grantham declaration adequately describes the documents the NSA
determined contained information responsive to Oglesby’s request, the nature of the documents,
as well as the information released to and withheld from Oglesby. Combined with the Janosek
Declaration’s averment that the information remains properly classified as of the filing of the
Defendants’ present motion, and that release of the information reasonably could be expected to
harm national security, the Court finds the NSA has adequately justified its withholdings.
IV. CONCLUSION
For the foregoing reasons, the Court finds the Defendants are entitled to summary
judgment on all remaining issues. In the context of complying with the Nazi War Criminal
Disclosure Act, the CIA conducted an adequate search for records responsive to Oglesby’s FOIA
request. The Plaintiffs failed to create a genuine issue of material fact as to the adequacy of the
CIA’s Vaughn index, including the CIA’s use of FOIA exemptions (b)(1) and (b)(3). The
Army’s decision to transfer all of its World War II related files from the Army’s Intelligence and
31
Security Command’s Investigative Records Repository to the National Archives and Records
Administration was not suspect, and thus the Army did not wrongfully withhold any relevant
documents. Finally, the Plaintiffs failed to create a genuine issue of material fact as to the
adequacy of the Vaughn declaration submitted by the National Security Agency. Accordingly,
the Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249]
Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240]
Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion
for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum
Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
32