Wiesner v. Federal Bureau of Investigation ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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MARTIN F. WIESNER, )
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Plaintiff, )
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v. ) Civil Action No. 07-1599 (RBW)
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FEDERAL BUREAU )
OF INVESTIGATION and )
CENTRAL INTELLIGENCE AGENCY, )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
Martin F. Wiesner, the pro se plaintiff in this civil lawsuit, seeks “the disclosure and
release of agency records” allegedly withheld by the Federal Bureau of Investigation (the “FBI”)
and the Central Intelligence Agency (the “CIA” or “Agency”) pursuant to the Freedom of
Information Act, 5 U.S.C. § 552 (2006) (the “FOIA”). Complaint (the “Compl.”) ¶ 1. Currently
before the Court is the CIA’s motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56. After carefully considering the plaintiff’s Complaint, the CIA’s motion, and all
memoranda of law and exhibits relating to that motion,1 the Court concludes for the reasons that
follow that it must grant the motion.
1
In addition to the plaintiff’s Complaint and the CIA’s Motion for Summary Judgment, the Court considered the
following documents in rendering its decision: (1) the Memorandum of Points and Authorities in Support of
Defendant Central Intelligence Agency’s Motion for Summary Judgment (the “CIA’s Mem.”); (2) the Defendant
Central Intelligence Agency’s Statement of Material Facts as to Which There Is No Genuine Dispute (the “CIA’s
Facts”); (3) the Opposition to Central Intelligence Agency’s Motion for Summary Judgment (the “Pl.’s Opp’n”); (4)
the Defendant Central Intelligence Agency’s Reply Memorandum (the “CIA’s Reply”); and (5) the Statement of
Material Facts as to Which It Is Contended There Is a Genuine Issue to Be Litigated (the “Pl.’s Facts”).
I. Background
The basic facts of this case are uncontested.2 “By letter dated February 9, 2006,” the
plaintiff “made a request” to the CIA under the FOIA for all files pertaining to him.3 CIA’s
Facts ¶ 1. The CIA informed the plaintiff in a letter dated February 23, 2006, that it had
“received” and “accepted” his request, and that it would, barring any objections by the plaintiff,
conduct a “search [only] for CIA-originated records existing through the date of this acceptance
letter.” CIA’s Mem., Ex. 3 (Declaration of Scott A. Koch) (the “Koch Decl.”), Ex. B. The
plaintiff “bore no objection” to the CIA’s limitation. Compl. ¶ 25. The CIA then searched “all”
of its locations “likely to have records responsive” to the plaintiff’s request, CIA’s Facts ¶ 2,
including “records maintained in the National Clandestine Service and the Directorate of
Support, Office of Security,” id. ¶ 3. The CIA conducted the search “using variations of [the]
plaintiff’s name, . . . date of birth[,] and social security number.” Id. “By letter[] dated March 7,
2006, the CIA notified [the p]laintiff that it had conducted a search and . . . found no records
responsive to his FOIA request.” Id. ¶ 4.
The plaintiff, through counsel, submitted a letter dated April 13, 2006, in which he
administratively appealed the CIA’s determination. CIA’s Mem., Koch Decl. Ex. D. The
plaintiff, having an apparent change of heart, objected to the CIA limiting its search for CIA-
2
Although the plaintiff filed a Statement of Material Facts as to Which It Is Contended There Is a Genuine Issue to
Be Litigated, the plaintiff does not actually dispute any of the facts asserted by the defendant. The plaintiff merely
argues that the “affidavits presented to this Court by the defendant fail to explain why it has continuously refused to
search for the requested records in [the p]laintiff’s initial request and appeal, and instead chosen only to selectively
focus on ‘CIA-originated’ records.” Pl.’s Facts at 1. The Court construes this statement as a challenge to the
sufficiency of the defendant’s factual assertions to prevail on its motion for summary judgment, rather than an
objection as to the veracity of the defendant’s factual averments. The Court therefore treats the CIA’s asserted facts
as undisputed for the purpose of ruling on its motion for summary judgment.
3
The plaintiff alleges in his complaint that his FOIA request “stem[s] from [his] involvement on a website, dating
from September 21, 2002, where he discussed materials and methods used in suicide bombings, opposition to
military action in Iraq, the impeachment of President Bush, and the 2002 [District of Columbia-]area sniper
shootings.” Compl. ¶ 6.
2
originated documents, demanding instead that the CIA search for “all data maintained by [the
CIA] pertaining to him.” Id. The plaintiff also instructed the CIA to do the following:
[U]se the following leads and information to search for CIA records pertaining to
Mr. Wiesner: the website[] www.dogsonacid.com aka “DOA”; persons using
aliases (account names) on this website, including aliases “Telavasquez[,]”[]
“Benedict Arnold[,]”[] “Suicide Bomba[,]”[] and “E.O.P”; opposition to the
invasion of Iraq, the impeachment of President Bush, methods and materials used
for “suicide bombings,” and the D.C. area sniper shootings of 2002.
Id. The CIA denied the plaintiff’s appeal on August 9, 2006, on the grounds that it had
conducted a “thorough and diligent search[] for all records . . . in the appropriate records
systems” but was “unable to locate any records responsive to [the plaintiff’s] request.” Id., Ex.
F. The plaintiff then filed his complaint in this Court on September 7, 2007, alleging, inter alia,
that the CIA “unlawfully withheld or unreasonably delayed” the production of documents
responsive to his request, id., and requesting that the Court “[o]rder [the CIA] to produce the
requested records in their [entirety], and make copies available to [the] plaintiff,” as well as
“[a]ward [the] plaintiff [his] costs and reasonable attorney[’]s fees incurred in this action.”
Compl. at 10.
The CIA now requests that it be awarded summary judgment, arguing that it “has
conducted a reasonable search of its records, located no responsive records, and therefore no
records have been improperly withheld from [the p]laintiff.” Def.’s Mem. at 1. In support of its
motion for summary judgment, the CIA attached the declaration of Scott A. Koch, Section Chief,
Information Review and Release Group, Information Management Services for the Office of the
Chief Information Officer, in which Mr. Koch explained the CIA’s general process for
responding to a request under the FOIA, CIA’s Mem., Koch Decl. ¶¶ 10-14, as well as the
specific efforts that the CIA employed in responding to the plaintiff’s request, id. ¶¶ 15-22.
3
The plaintiff, in his opposition to the CIA’s motion, raises two arguments in response to
the CIA’s assertion that the search was adequate. First, he claims that the search was inadequate
because the CIA searched only for “CIA-originated” documents and “refus[ed] to search for all
records pertaining to [the] plaintiff.” Pl.’s Opp’n at 2. Second, he claims that the CIA “refus[ed]
to utilize the necessary information included in [the] plaintiff’s appeal to locate [these] records.”
Id.In its reply, the CIA states that “[w]hile it is true that the CIA’s initial search was limited
to CIA-originated records . . . , the CIA made clear that it conducted an additional search in
response to [the p]laintiff’s administrative appeal and that the second search was for all CIA
records.” CIA’s Reply at 6 (internal quotation marks omitted). As for the suggested leads
submitted by the plaintiff in his administrative appeal, the CIA argues that it had no obligation to
conduct a new search because the leads “provided no assistance to the CIA in locating
responsive records in its record systems and provided no basis for the [A]gency to believe that
the leads would direct the [A]gency to records maintained under the name ‘Martin Wiesner.’”
Id. at 9. The CIA further contends that “[a]ny such records would have been located in the initial
and appeal searches,” and that “any records with references to the suggested leads and
information . . . would not include references to ‘Martin Frederick Wiesner.’” Id. at 8.
II. Standard of Review
Under Rule 56, summary judgment is appropriate if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” When ruling on a Rule 56 motion, the Court must view the evidence in the light
most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
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2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must
therefore draw “all justifiable inferences” in the non-moving party’s favor and accept the non-
moving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The non-moving party, however, cannot rely on “mere allegations or denials,” Burke v. Gould,
286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation
marks omitted), for “conclusory allegations unsupported by factual data will not create a triable
issue of fact,” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999)
(internal brackets and quotation marks omitted). If the Court concludes that “the non-moving
party has failed to make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof,” then the moving party is entitled to summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
III. Legal Analysis
The sole issue before the Court is whether the CIA’s search for records responsive to the
plaintiff’s FOIA request was adequate. An agency that is responding to a FOIA request must
make “a good faith effort to conduct a search for the requested records, using methods which can
be reasonably expected to produce the information requested.” Baker & Hostetler LLP v. U.S.
Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (internal quotation and citation
omitted); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating
that “[an] agency must demonstrate that it has conducted a search reasonably calculated to
uncover all relevant documents” (internal quotation marks omitted)). While “an agency cannot
limit its search to only one record system if there are others that are likely to turn up the
information requested,” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998)
(internal quotation marks omitted), the search “need not be perfect, only adequate, and adequacy
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is measured by the reasonableness of the effort in light of the [plaintiff’s] specific request,”
Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); see also id. at 953 (stating that “[i]t
would be unreasonable to expect even the most exhaustive search to uncover every responsive
file”).
Thus, “[t]here is no requirement that an agency search every record system” in which
responsive documents might conceivably be found. Oglesby v. U.S. Dep’t of Army, 920 F.2d
57, 68 (D.C. Cir. 1990). Rather, an agency must demonstrate the adequacy of its search by
providing a “reasonably detailed affidavit, setting forth the search terms and type of search
performed, and averring that all files likely to contain responsive materials . . . were searched.”
Id. “Once the agency has shown that its search was reasonable, the burden shifts to [the
plaintiff] to rebut [the defendant’s] evidence . . . either by contradicting the defendant’s account
of the search procedure or by raising evidence of the defendant’s bad faith.” Moore v. Aspin,
916 F. Supp. 32, 35-36 (D.D.C. 1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383-
84 (8th Cir. 1985)). “Agency affidavits are accorded a presumption of good faith, which cannot
be rebutted by purely speculative claims about the existence and discoverability of other
documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted).
Here, the CIA has submitted the declaration from Mr. Koch, in which he explains at
length the record-keeping systems utilized by the CIA, CIA Mem., Koch Decl. ¶¶ 7-9, and the
process employed to search them, id. ¶¶ 10-14. He further states that the CIA, in processing the
plaintiff’s request, conducted an initial search for CIA-originated records maintained in the
National Clandestine Service and the Directorate of Support, Office of Security, for any
references to the plaintiff’s name (as well as several permutations thereof), date of birth, and
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social security number. Id. ¶ 17. According to Mr. Koch, “[t]hese diligent searches failed to
disclose any records.” Id. After accepting the plaintiff’s appeal on May 2, 2006, id. ¶ 20, the
CIA “conducted another thorough search, to include all records, using the same search terms
used in the first search,” id. ¶ 21. “Once again, [the] CIA was unable to locate any records
pertaining to [the p]laintiff.” Id.
The plaintiff challenges the adequacy of this search in two ways. The plaintiff’s first
claim—that the CIA wrongfully limited its search to only those documents originated by the
Agency—can be quickly disposed of. The CIA notified the plaintiff in its February 23, 2006
letter that it would search only for CIA-originated records and that the plaintiff was free to object
to this limitation. While the plaintiff did not object prior to the CIA completing its initial search,
when he did object to the scope of that search in his April 13, 2006 appeal letter, the Agency
conducted a search for all records using the same search terms used in the first search.4 The CIA
then notified the plaintiff in its August 9, 2006 letter that the all-records search produced no
documents either. The plaintiff has not offered any evidence to suggest that the Agency’s second
search was faulty or conducted in bad faith, and the Court therefore concludes that the CIA’s
second search for all documents was reasonable and adequate.
The plaintiff’s second claim—that the CIA unjustifiably refused to search for the
additional terms listed in his April 13, 2006 appeal letter—cannot be so easily addressed. In an
earlier memorandum opinion issued in this case, Wiesner v. FBI, 577 F. Supp. 2d 450 (D.D.C.
2008) (Walton, J.), the Court addressed a similar situation involving the FBI’s refusal to conduct
4
Had the Agency, after receiving the plaintiff’s objection, declined to search for non-CIA-originated records, then
the plaintiff would be correct that the CIA failed to comply with its duty to search for all agency records. See
McGehee v. CIA, 697 F.2d 1095, 1109 (D.C. Cir. 1983) (holding that the term “agency records,” as used in the
FOIA, includes all records in the possession of an agency). The Agency, however, did conduct a search for all
records upon receiving the plaintiff’s objection, so McGehee is inapposite.
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a search of additional terms that the Agency obtained in the plaintiff’s appeal letter. The FBI
refused to conduct a new search because “using the additional terms provided by the plaintiff in
his appeal letter would not have located additional records responsive to the plaintiff’s request.”
Id. at 457 (internal brackets omitted). The Court denied the FBI’s motion for summary judgment
on the grounds that the FBI’s “explanation regarding the adequacy of the [its] search . . . is too
vague for the Court to conclude that the search performed by the FBI was sufficient.” Id. The
Court concluded that the FBI’s declaration that “a search using any of these terms would fail . . .
does not show, with reasonable detail, that the search method [employed by the FBI] was
reasonably calculated to uncover all relevant documents.” Id. at 458 (internal quotation marks
omitted).
Accordingly, it would appear to the Court that the CIA’s explanation for refusing to
conduct a search of the additional terms also does not suffice to show that the Agency’s actions
were reasonable, adequate, and in good-faith. The CIA, like the FBI, claims that the plaintiff’s
additional search terms would not lead to responsive documents, and that any records pertaining
to the plaintiff “would have been located in the initial and appeal searches” that were conducted
by the Agency. CIA’s Reply at 8. This explanation is no more detailed than the one provided by
the FBI in its motion for summary judgment, and based on the reasoning in Wiesner, the CIA
would not prevail on its motion for summary judgment.
The CIA, however, presents a new argument in the motion now before the Court that the
FBI did not raise (and consequently the Court did not consider) in Wiesner: that the plaintiff’s
suggested leads in his appeal letter constituted a “new search,” which, under Kowalczyk v. U.S.
Dep’t of Justice, 73 F.3d 386 (D.C. Cir. 1996), the Agency is not obligated to conduct and a
court is not to consider in determining the adequacy of the Agency’s efforts to locate responsive
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documents. See id. at 388 (setting aside the plaintiff’s “subsequent clarification” in determining
whether the FBI’s search was adequate, reasonable, and in good-faith). In that case, Kowalczyk
sought from the FBI “all records in agency files, including but not limited to . . . [f]ederal case
number 88 CR 701 and counsel for the defense[,] Louis E. Diamond and Louis Rosenthal, Esq.”
Id. Five months later, the plaintiff submitted an administrative appeal asking for “all [a]gency
records pertaining to . . . [c]riminal [c]ase [n]umber 88 CR 701[] in the Eastern District of New
York.” Id. (emphasis added). Upon discovering that the FBI did not conduct a search for
responsive documents in its New York field office, Kowalczyk brought suit against the Agency.
The District of Columbia Circuit, ruling in favor of the FBI, first began its analysis by
“setting aside Kowalczyk’s letter of appeal.” Id. The circuit court concluded that “a reasonable
effort to satisfy [a] request does not entail an obligation to search anew based upon a subsequent
clarification” because “[r]equiring an additional search each time the [A]gency receives a letter
that clarifies a prior request could extend indefinitely the delay in processing new requests.” Id.The circuit court then “[f]ocus[ed] upon Kowalczyk’s original FOIA request” and observed that
the original request “made no reference to the New York field office or, indeed, to New York.”
Id. at 389. The circuit court therefore concluded that “[t]he information in Kowalczyk’s request .
. . did not enable the FBI to determine that the New York Field office had responsive records.”
Id.The circuit court did recognize, however, that there may be times that an agency may
have to “pursue . . . a lead it cannot in good faith ignore, i.e., a lead that is both clear and
certain.” Id. The circuit court, however, perceived such situations to be “rare” and arising in
situations where “an agency record contains a lead so apparent that the Bureau cannot in good
faith fail to pursue it.” Id. (emphasis added). Put differently, an agency need only pursue leads
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that raise red flags pointing to the probable existence of responsive agency records that arise
during its efforts to respond to a FOIA request.5 See id. (concluding that “in order [for the FBI]
to incur any obligation to search the New York field office, the Bureau would have had to find a
document at headquarters specifically indicating that documents related to a case bearing the
number 88 CR 701 were located in its New York office”). “[A]n agency’s hesitancy to pursue
potential leads after its search has been completed,” however, does not lead to the conclusion
that the agency’s “search [was] inadequate,” nor does it “justif[y] reviving unexhausted claims.”
Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of the Interior, 503 F. Supp.
2d 88, 100 (D.D.C. 2007) (Walton, J.).
In light of the circuit court’s holding in Kowalczyk, the Court concludes that it erred in
Wiesner by considering the additional search terms in determining whether the FBI conducted a
reasonable and adequate search. The suggested leads proffered by the plaintiff in his appeal
letter to the FBI constituted a new search that the Agency had no obligation to conduct.
Likewise, the additional search terms proffered by the plaintiff to the CIA in his appeal letter
cannot be a part of the Court’s calculus to determine whether the CIA conducted a search that
was “reasonably calculated to uncover all relevant documents.” Steinberg, 23 F.3d at 551.
Rather, the Court must focus only on the plaintiff’s original request to the CIA, and the Agency’s
5
Contrary to the Court’s suggestion in Wiesner, Campbell does not suggest that additional leads provided by the
requestor must be pursued by the Agency. There, the circuit court noted that the FBI, in handling Campbell’s
request, “started with the reasonable assumption that only a [limited] review would be necessary, but that
assumption became untenable once the FBI discovered information suggesting the existence of documents that it
could not locate without expanding the scope of its search.” Campbell, 164 F.3d at 28. The “discovered
information” that the circuit court alluded to were documents located as a result of the initial search that suggest
“through administrative annotations and express references in the text” that other responsive documents could be
found in a different index or file. See id. at 27. In other words, the “discovered information” fell within the “rare”
exception recognized by the circuit court in Kowalczyk—a clear and certain lead found in the population of agency
records that resulted from the Agency’s reasonable search for documents. Campbell does not, however, address an
agency’s obligations upon receiving a clarification by the requestor after it has already completed its search.
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efforts to respond to that request, in making its determination. The Court’s decision in Wiesner
does not conform to the law of this circuit and is therefore vacated.
Disregarding the additional leads identified in the plaintiff’s appeal letter, it is evident to
the Court that the CIA conducted an adequate and reasonable search for documents responsive to
the plaintiff’s original request. That request was limited to one for documents that pertained to
him. CIA’s Facts ¶ 1. Naturally, documents that pertained to the plaintiff were likely to contain
either his name, variations of his name, or other identifiers, such as his birthday and social
security number. Mr. Koch, in his affidavit, states that the Agency ran searches using these leads
in its effort to discover the requested information. See CIA Mem., Koch Decl. ¶ 17 (“The
components searched [for CIA-originated records] using variations of the requestor’s name –
Martin Frederick Wiesner – along with his year of birth and social security number.”); id. ¶ 21
(“[T]he relevant components . . . conducted another thorough search, to include all records, using
the same search terms used in the first search.”). While the CIA initially limited its search to
CIA-originated documents, see id. ¶ 17, it conducted a search for all documents after the plaintiff
objected to this limitation in his appeal letter, see id. ¶ 21. The plaintiff has failed to offer any
evidence to rebut the declarations in Mr. Koch’s affidavit, and the Court, therefore, concludes
that the CIA conducted an adequate, reasonable, and good-faith search in response to the
plaintiff’s initial FOIA request.
IV. Conclusion
In sum, the Court must conclude that the CIA’s response to the plaintiff’s original FOIA
request was adequate, reasonable, and in good-faith. The plaintiff has failed to set forth any
specific facts to refute the CIA’s affidavit and attachments evidencing that it had, in fact,
conducted a search of all records in its possession in an attempt to respond to the plaintiff’s
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FOIA request. Furthermore, the CIA had no obligation to conduct a new search based on the
additional terms submitted by the plaintiff in its April 13, 2006 appeal letter; indeed, “it would be
untenable to hold that, as the FOIA litigation proceeds, a plaintiff, by continually adding new
requests . . . could command a priority based on the date of the initial requests.” Biberman v.
FBI, 528 F. Supp. 1140, 1144 (S.D.N.Y. 1982) (internal quotation marks omitted). The Court,
therefore, will grant the CIA’s motion for summary judgment.
SO ORDERED this 12th day of November, 2009.6
REGGIE B. WALTON
United States District Judge
6
The Court issued an order consistent with this memorandum opinion on September 30, 2009. That order is now
final upon the issuance of this memorandum opinion. Additionally, a supplemental order will be issued
contemporaneously with this memorandum opinion vacating this Court’s order of September 23, 2008, in which the
Court granted in part and denied in part the FBI’s motion to dismiss or, in the alternative, for summary judgment.
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