James Madison Project v. Central Intelligence Agency ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES MADISON PROJECT, :
:
Plaintiff, :
:
v. : Civil Action No. 08-0708 (JR)
:
CENTRAL INTELLIGENCE AGENCY, :
:
Defendant. :
MEMORANDUM
The James Madison Project (JMP) brought this FOIA
action to compel the CIA to respond to its October 2007 request
for “copies of all internal [CIA] documents pertaining to
discussions concerning the decision to initiate an internal
review of the operations of the CIA’s Inspector General (“IG”),
John Helgerson, and of the IG’s office as a whole.” Dkt. 5,
Ex. A (emphasis added). The CIA has since reported that it has
found no responsive records, id., Ex. D, and has moved to
dismiss, or, alternatively, for summary judgment.
To prevail, the CIA must “show beyond a material doubt
that it has conducted a search reasonably calculated to uncover
all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983). The CIA must defend the search
process, not its outcome: “the agency’s failure to turn up a
particular document, or mere speculation that as yet uncovered
documents might exist, does not undermine the determination that
the agency conducted an adequate search for the requested
records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)
(citations omitted).
The CIA’s initial attempt to meet this standard was the
affidavit of Delores M. Nelson, a senior CIA public information
official. See First Nelson Decl. JMP challenged Ms. Nelson’s
affidavit on two grounds: that it did not explain why the CIA
searched only for records within the Director of the Central
Intelligence Agency (DCIA) component, and that it did not explain
why the CIA searched only for records generated before
November 5, 2007.1 The CIA has addressed both of those points in
a second affidavit of Ms. Nelson. She states that the CIA only
searched the DCIA component because “the Director of the CIA
decided to initiate the review [,] the Office of the DCIA carried
out the review of the IG . . . [and] the other directorates of
the CIA . . . were not involved in the decision to initiate the
internal review.” Second Nelson Decl., at ¶ 3. She also
explains that the CIA’s search for pre-November 5, 2007 documents
1
JMP’s other concerns about the first Nelson declaration --
its failure to describe “which of the ‘example’ search terms were
used in which particular record systems,” “what other search
terms were used in conducting the search,” and “whether and to
what degree the CIA revised its initial search in light of
information discovered during initial phases of the search” --
ask too much of the CIA. See, e.g., Miller v. Dept. of State,
779 F.2d 1378, 1383 (8th Cir. 1985) (“An agency may prove the
reasonableness of its search through affidavits of responsible
agency officials so long as the affidavits are relatively
detailed, non-conclusory and submitted in good faith”).
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was reasonable because the CIA’s decision to conduct an internal
review of the IG occurred well before that date. Id., at ¶ 4.
JMP also finds the CIA’s failure to produce at least
one of the IG’s semiannual reports suspicious, since the internal
inquiry into the IG’s performance lasted approximately ten
months. JMP concedes that “the inability of an agency to find a
particular document does not generally render a search
inadequate,” but relies on Nation Magazine, Wash. Bureau v. U.S.
Customs Serv., 71 F.3d 885 (D.C. Cir. 1995), for the proposition
that “in certain circumstances a court may place significant
weight on the fact that a records search failed to turn up a
particular document.” Dkt. 9, at 12. Ms. Nelson notes, however:
While the IG’s Office is obligated to meet
certain reporting requirements under the CIA
Act, the CIA did not search for any IG
reporting relating to the internal review of
the IG’s office simply because these
documents would not be responsive to
Plaintiff’s request. Any documentation
relating to the IG Office’s compliance with
the internal review would not be responsive
to a request for records relating to the
decision to initiate the internal review of
the IG and the IG’s office as a whole.
Second Nelson Decl., at ¶ 5 (emphasis in original).
The CIA’s position rests upon a careful and literal,
but not improper, reading of JMP’s narrow and awkwardly worded
FOIA request. The two Nelson declarations demonstrate that the
search -- for what JMP asked for -- was reasonable.
* * *
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The CIA’s motion to dismiss JMP’s amended complaint
will be granted. The exquisitely nuanced question of whether
plaintiff filed an amended or supplemental complaint is mooted,
in this instance, by the exercise of my discretion not to allow
plaintiff to alter and expand this litigation more than two
months after a motion for summary judgment on its original
complaint was fully briefed and under submission. The FOIA
requests plaintiff made to different agencies about the same or
similar subjects involved in this case will have to be pursued
separately.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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