Schoenman v. Federal Bureau of Investigation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH SCHOENMAN,
Plaintiff,
v. Civil Action No. 04-02202 (CKK)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
(January 21, 2011)
Plaintiff Ralph Schoenman (“Schoenman”), a political activist and author, commenced
this action against a variety of named and unnamed agencies, including the Central Intelligence
Agency (the “CIA”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and
the Privacy Act of 1974 (the “Privacy Act”), 5 U.S.C. § 552a, seeking an array of records
concerning himself. This Court previously granted in large part the CIA’s [64] Motion for
Summary Judgment and denied in large part Schoenman’s [70] Cross-Motion for Partial
Summary Judgment. However, the Court held in abeyance both motions as they pertained to a
single, discrete issue—namely, the adequacy of the CIA’s search for records within two
component units of the CIA, including the propriety of the CIA’s failure to produce “index
references.” The parties were instructed to, and did, submit supplemental materials addressing
this discrete issue. Now, based upon those submissions, the relevant authorities, and the record
as a whole, the Court finds in the CIA’s favor and shall therefore GRANT the CIA’s [64] Motion
for Summary Judgment and DENY Schoenman’s [70] Cross-Motion for Partial Summary
Judgment on this remaining issue.
I. BACKGROUND
The Court assumes familiarity with its prior opinions in this action, which set forth in
detail the history of this case, and shall therefore only address the factual and procedural
background necessary to address the discrete issue currently before the Court.
A. Factual Background
All CIA records are1 maintained by one of the directorates or independent offices that
report to the Director of Central Intelligence, which include:
• The Director of Central Intelligence Area (the “DCI Area”), which
includes various independent offices reporting directly to the Director of
Central Intelligence, such as the Office of Inspector General, the Office of
General Counsel, and the Office of Public Affairs;
• The Directorate of Intelligence (the “DI”), which analyzes, interprets, and
forecasts foreign intelligence issues and produces intelligence reports for
dissemination to policymakers in the United States;
• The Directorate of Science and Technology (the “DS&T”), which creates
and applies technologies for intelligence requirements and maintains
records concerning foreign open source information;
• The Directorate of Operations (the “DO”), which is responsible for the
clandestine collection of foreign intelligence information; and
• The Mission Support Offices (the “MSO”), which is the CIA’s
administrative support arm responsible for personnel and security issues,
including investigations of individuals having a relationship with the CIA.
Decl. of Ralph S. DeMaio (“DeMaio Decl.”), Docket No. [64-1], ¶¶ 22-27.
The CIA’s Office of Information Management Services (“IMS”) serves as the initial
reception point for all FOIA and Privacy Act requests directed to the CIA. Id. ¶ 28. Upon
1
Despite the use of the present tense, the Court’s description is limited to the
organizational structure and record systems in existence during the period relevant to the present
action.
2
receiving a request, IMS personnel determine which areas of the CIA reasonably might be
expected to possess responsive records and forward copies of the request to those areas with
instructions to search for responsive documents. Id. The tasked areas then conduct searches
among their component parts and record systems that reasonably might be expected to have
information responsive to the request. Id. Because they reflect and respond to the established
responsibilities and needs of specific areas within the CIA, records systems vary among the
CIA’s component parts. Id. ¶ 21. As a result, the CIA’s ability to retrieve information from a
given records system depends upon the type of information stored in that system and the way the
system is designed to retrieve information. Id.
On July 24, 2001, Schoenman, through counsel, submitted a request for records to the
CIA under FOIA and the Privacy Act (the “Request”). Id. ¶ 9. Schoenman sought records
pertaining to himself, all “index references,” and all records used by the CIA in conducting its
search for records.3 Id. The CIA processed Schoenman’s Request using the procedures set forth
above—that is, the Request was received by IMS, reviewed by IMS personnel, and then
forwarded to those areas within the CIA that were reasonably likely to have responsive records.
Id. ¶ 34. Specifically, based upon its determination that they were the two areas within the CIA
likely to possess responsive records, IMS personnel instructed the DO and the MSO to search for
records responsive to Schoenman’s Request. Id. The precise contours of those searches are
discussed more fully below. See infra Part III.A. Meanwhile, given the nature of the missions
3
Schoenman also sought records pertaining to Lord Bertrand Russell and six named
organizations. DeMaio Decl. ¶ 9. The Court previously dismissed Schoenman’s claims as they
pertain to these records based on his failure to exhaust his administrative remedies. See
Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202 (CKK), 2006 WL 1126813, at
*19-20 (D.D.C. Mar. 31, 2006).
3
pursued by the DCI Area, the DI, and the DS&T, IMS personnel determined that those areas
were not likely to have any records responsive to Schoenman’s Request and therefore did not
instruct those areas to search for responsive records. DeMaio Decl. ¶ 37.
B. Procedural History
Schoenman commenced this action on December 20, 2004 against a variety of named and
unnamed agencies, including the CIA. See Compl., Docket No. [1]. In the succeeding years, his
claims have been successively winnowed down by orders of this Court. Most notably, on March
19, 2009, this Court granted in large part the CIA’s [64] Motion for Summary Judgment and
denied in large part Schoenman’s [70] Cross-Motion for Partial Summary Judgment. See
Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202 (CKK), 2009 WL 763065 (D.D.C.
Mar. 19, 2009). Specifically, the Court found in the CIA’s favor as follows: (a) the CIA’s search
for records was not inadequate on the basis that it excluded the DCI Area and the DI from the
search for responsive records;4 (b) the CIA properly invoked various exceptions to production in
withholding responsive information either identified during its own search or referred to it by
other agencies; (c) the CIA set forth a sufficiently particularized segregability analysis; and (d)
Schoenman failed to raise a sufficiently compelling question as to the CIA’s good faith such that
would warrant the taking of discovery. See generally id. However, the Court held in abeyance
the parties’ cross-motions on a single, discrete issue: the adequacy of the CIA’s search for
records within the MSO and the DO, including the propriety of the CIA’s failure to produce
“index references.” See id. at *15-18.
4
Schoenman did not challenge the CIA’s decision to exclude the DS&T from the search
for responsive records. Schoenman, 2009 WL 763065, at *10 n.12.
4
In its prior opinion addressing the parties’ respective cross-motions for summary
judgment, the Court found that, while the CIA had provided some information concerning the
search for records within the MSO and the DO, its description of the search—confined to two
terse paragraphs—was insufficiently detailed to demonstrate compliance with the applicable
legal standard. Id. at *15. Indeed, while the CIA “provided a lengthy description of [its] general
process for complying” with requests, it did not offer any detail “as to how the DO and the MSO
conducted their record searches” in this case, nor provided a description of the record systems
utilized by those component units of the CIA. Id. at *15-16. Acknowledging that the sufficiency
of the CIA’s showing was a closer question than in the guiding precedents, the Court concluded
that the most prudent course was to hold the issue in abeyance while the CIA provided a more
expansive description of the search it conducted within the MSO and the DO. Id. at *16.
Meanwhile, with one exception, the Court uniformly rejected Schoenman’s contentions
that the CIA’s search was inadequate based upon his speculation that the CIA should have
produced certain documents in response to his Request. Id. at *16-18. The one exception
pertained to Schoenman’s request for “all index references,” which the CIA admittedly had not
produced. Id. at *18. Because the CIA had not offered any explanation as to why these
documents were not produced, the Court instructed the CIA, in its supplemental materials, to
“provide an explanation for its failure to provide ‘index references’ to [Schoenman], as
requested.’” Id.Consistent with the Court’s directives, on April 10, 2009, the CIA filed supplemental
materials purporting to address the Court’s concerns. See Def.’s Notice of Filing, Docket No.
[112]; Fourth Decl. of Ralph S. DiMaio (“Suppl. DeMaio Decl.”), Docket No. [112-1]. On May
5
1, 2009, Schoenman filed his opposition and response to those supplemental materials. See Pl.’s
Suppl. Opp’n to Def. Central Intelligence Agency’s Mot. for Summ. J. (“Pl.’s Opp’n.”), Docket
No. [116]. On May 13, 2009, the CIA filed a reply. See Def. Central Intelligence Agency’s
Reply to Pl.’s Suppl. Opp’n to Def. Central Intelligence Agency’s Mot. for Summ. J. (“Def.’s
Reply”), Docket No. [117]. The matter was therefore fully briefed and ripe for adjudication.
Nevertheless, on August 15, 2009, without first seeking the Court’s leave, Schoenman
filed additional materials that he contends demonstrate that the CIA failed to conduct an adequate
search for responsive records. See Pl.’s Notice of Filing, Docket No. [122]. On October 12,
2009, Schoenman sought the Court’s leave to further supplement the record with yet more
materials that he contends bear upon the adequacy of the CIA’s search for records (the “Motion
to Supplement the Record”)—a motion which remains pending and is resolved herein. See Pl.’s
Mot. for Leave to Further Supplement His Opp’n to Def. Central Intelligence Agency’s Mot. for
Summ. J. (“Pl.’s Mot. to Suppl. Mem.”), Docket No. [124-1]. On October 30, 2009, the CIA
filed an opposition to Schoenman’s Motion to Supplement the Record. See Def.’s Opp’n to Pl.’s
Mot. for Leave to Further Supplement His Opp’n to Def. Central Intelligence Agency’s Mot. for
Summ. J., Docket No. [126]. On November 10, 2009, Schoenman filed a reply. See Reply to
Def. Central Intelligence Agency’s Oppotiion [sic] to Pl.’s Mot. for Leave to Further Supplement
His Opp’n to the CIA’s Mot. for Summ. J. (“Pl.’s Mot. to Suppl. Reply”), Docket No. [129].5
5
The parties have filed a variety of notices and supplemental papers relating to this
motion and other outstanding motions. For purposes of economy, the Court shall not cite to
those documents here, but notes that it renders its decision today upon the parties’ submissions,
the attachments thereto, and the record as a whole.
6
II. LEGAL STANDARD
An inadequate search for records constitutes an improper withholding under FOIA.
Budik v. Dep’t of Army, __ F. Supp. 2d __, 2010 WL 3833828, at *6 (D.D.C. Sept. 30, 2010).
Where the adequacy of an agency’s search is challenged, the agency “must show beyond 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). That is,
an agency must show that it made “a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
“The adequacy of an agency’s search is measured by a standard of reasonableness, and is
dependent upon the circumstances of the case.” Weisberg, 705 F.2d at 1351 (internal citation
and quotation marks omitted); accord Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27-28
(D.C. Cir. 1998). Because “the adequacy of a FOIA search is generally determined not by the
fruits of the search, but by the appropriateness of the methods used to carry out the search,”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), “the [mere] fact that a
particular document was not found does not demonstrate the inadequacy of a search,” Boyd v.
Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir.), cert. denied, 552 U.S. 1007(2007). Indeed, an agency’s lack of success in locating responsive records does not render the
search inadequate provided the agency’s supporting declarations establish its compliance with
FOIA. Budik, 2010 WL 3833828, at *7. Nor must an agency search every record system to
render its search reasonable. Oglesby, 920 F.2d at 68. “Rather, an agency is only required to
search those record systems that are likely to turn up the information requested.” Schoenman,
7
2009 WL 763065, at *11 (citing Oglesby, 920 F.2d at 68). In sum, perfection is not the standard.
Budik, 2010 WL 3833828, at *6. Instead, “the agency must show that it made a good faith effort
to conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.” Oglesby, 920 F.2d at 68.
On a motion for summary judgment, an agency may discharge its burden of establishing
the reasonableness of its search by submitting a “reasonably detailed affidavit” describing the
search performed and averring that all files likely to contain responsive documents were
searched. Id. The Court of Appeals for the District of Columbia Circuit has described the
agency’s evidentiary burden more fully as follows:
The affidavits of the responding agency [need not] set forth with
meticulous documentation the details of an epic search for the
requested records. Rather, in the absence of countervailing evidence
or apparent inconsistency of proof, affidavits that explain in
reasonable detail the scope and method of the search conducted by the
agency will suffice to demonstrate compliance with the obligations
imposed by the FOIA.
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). To be sufficiently detailed, the agency’s
affidavits must at a minimum describe “what records were searched, by whom, and through what
process.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994).
Once an agency has made a prima facie showing of adequacy, the burden shifts to the
plaintiff to provide “‘countervailing evidence’ as to the adequacy of the agency’s search.”
Iturralde, 315 F.3d at 314. Indeed, the plaintiff must provide evidence sufficient to raise
“substantial doubt” concerning the adequacy of the agency’s search. Iturralde, 315 F.3d at 314
(citing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). With these
principles in mind, the Court turns to the merits of the parties’ arguments.
8
III. DISCUSSION
The Court’s discussion proceeds in three parts: first, the Court shall explain why the CIA
has carried its burden of establishing the reasonableness of its search for responsive documents
within the MSO and the DO; second, the Court shall address why Schoenman’s belatedly
introduced arguments concerning the adequacy of the CIA’s search are without merit; and third,
and finally, the Court shall explain why Schoenman is not entitled to discovery from the CIA.
A. The CIA Has Carried its Burden of Establishing the Reasonableness of its Search
for Responsive Records within the MSO and the DO
Schoenman has challenged the adequacy of the CIA’s search as it pertains to two
component parts of the CIA—namely, the MSO and the DO. In both instances, the CIA has
discharged its burden of establishing the reasonableness of its search and, despite a litany of
complaints, Schoenman has failed to adduce the sort of countervailing evidence that would cast
substantial doubt on the adequacy of the CIA’s search.
1. The CIA Has Carried its Burden of Establishing the Reasonableness of its
Search within the MSO
The MSO is the CIA’s administrative support arm and is responsible for various
administrative matters, including personnel resources, logistics, communications, finance,
facilities, acquisitions, security, medical services, and other general support. Suppl. DeMaio
Decl. ¶ 4. The MSO maintains records on all current and former CIA employees, as well as other
individuals for whom security processing or evaluation has been required, including those
individuals who come to the CIA’s attention due to a counterintelligence interest. Id. ¶ 5.
Typically, where an individual has no past, present, or potential relationship with the agency, the
MSO would not have any records pertaining to that individual. Id.
9
The Office of Security (the “MSO/OS”)—one of five separate offices within the
MSO—maintains the CIA’s security database containing records of security-related documents
dating from the agency’s inception. DeMaio Decl. ¶ 26; Suppl. DeMaio Decl. ¶ 5. In this case,
once tasked by IMS with the responsibility for searching for documents responsive to
Schoenman’s Request, the MSO/OS “made all reasonable efforts to identify and retrieve any
[responsive] records.”6 DeMaio Decl. ¶ 36. Indeed, even though Schoenman’s Request did not
suggest that he had any relationship with the CIA that would entail there being any responsive
records, the CIA nevertheless proceeded to conduct a search for responsive records “out of an
abundance of caution and in the interest of completeness.” Suppl. DeMaio Decl. ¶ 5.
Specifically, in September 2001, the MSO/OS conducted a thorough search for responsive
records. Id. ¶ 6. Although the MSO/OS used Schoenman’s name and variants thereof as search
terms, it did not document the search terms used because the MSO/OS located no records
responsive to Schoenman’s Request. DeMaio Decl. ¶ 36; Suppl. DeMaio Decl. ¶ 6. In any
event, on July 27, 2005, despite the results of the initial search, the MSO/OS conducted a second
search of its security database, employing a broad swath of search terms including Schoenman’s
Social Security Number and accounting for the possibility of misspellings or incomplete
information in Schoenman’s name.7 Suppl. DeMaio Decl. ¶ 6. Both searches were conducted by
6
While the CIA tasked the MSO/OS with the responsibility for searching for documents
responsive to Schoenman’s Request, the CIA did not, in the first instance, similarly task the other
four component parts of the MSO—i.e., the Chief Information Officer, the Chief Financial
Officer, the Chief Human Resources Officer, and Global Support—because those component
parts are not reasonably likely to have records pertaining to an individual if no records are
maintained by the MSO/OS. DeMaio Decl. ¶ 26; Suppl. DeMaio Decl. ¶¶ 6-7.
7
Apart from Schoenman’s Social Security Number, these search terms included: Ralph
Benedek Schoenman; Ralph B. Schoenman; Ralph Schoenman; Benedek Ralph Schoenman;
Benedek R. Schoenman; Ralph Benedek* Schoenman; Bene* Schoenman; Ral* Schoenman;
10
trained MSO personnel who regularly conduct such searches as part of their normal
responsibilities. Id.
Based on the foregoing, the CIA has discharged its burden of describing in reasonable
detail the scope and method of the search it performed and averring that all files likely to contain
documents responsive to Schoenman’s Request were searched. Perry, 684 F.2d at 127. That the
CIA’s submissions could have hypothetically been more detailed—for example, in describing the
number of “false hits” obtained during the course of its search—does not prevent the Court from
concluding that the CIA has satisfactorily demonstrated the adequacy of its search, nor preclude a
finding that summary judgment is appropriate. See id. (“To be sure, the descriptions of the
searches could have been more detailed . . . . The arguable inadequacy of the search descriptions
here is, however, no more than marginal and does not render the grant of summary judgment
inappropriate.”). Because the record evidences that the CIA conducted an informed, detailed,
and good faith search of sources likely to reveal documents maintained by the MSO and
responsive to Schoenman’s Request, the Court finds that the CIA has carried its burden of
establishing the reasonableness of its search within the MSO.
The CIA having discharged its burden of making out a prima facie showing of
reasonableness, the burden shifts to Schoenman to provide “‘countervailing evidence’ as to the
adequacy of the agency’s search.” Iturralde, 315 F.3d at 314. Schoenman tenders five principal
Ra* Schoenman; R* Schoenman; Ralph* Schoenman*; R* Schoenman*; * Schoenman; *
Schoenman*; Ralph Shoenman; Ralph Schonman; Ralph Schoeman; Ralph Shoeman; Ralph
Showman; Ralph Shoenmann; Ralph Schoe*; Ralph Shoe*; Ralph Scho*; Ralph Sho*; R*
Schoenmann; R* Schoe*; R* Shoe*; R* Scho*; R* Sho*; * Shoenman; * Schonman; *
Schoeman; * Shoeman; *Showman; * Schoenmann; * Schoe*; * Shoe*; * Scho*; and * Sho*.
Suppl. DeMaio Decl. ¶ 6 n.3.
11
arguments as to why the CIA’s search within the MSO/OS should be held inadequate, none of
which is of any avail. The Court addresses each argument in turn.
First, Schoenman contends that the search within the MSO/OS was inadequate because
the CIA did not document the search terms used in the course of its initial search in September
2001. Pl.’s Opp’n at 2. To the extent Schoenman intends to suggest that the CIA was somehow
obligated to create a record of its search, he is mistaken. Because FOIA does not obligate
agencies to create or retain documents, the CIA was not required “to provide [Schoenman] with
documentation that may or may not exist but which, in any event, was created during the course
of searching for records.” Schoenman, 2009 WL 763065, at *18 (citing Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)). To the extent Schoenman intends
to suggest that the absence of detailed documentation concerning the scope of the search
precludes the Court from assessing its adequacy, he is again mistaken. Even if the Court were to
disregard the record evidence indicating that the MSO/OS searched its records in September
2001 using Schoenman’s name and variants thereof, DeMaio Decl. ¶ 36, the precise scope of the
MSO/OS’s initial search is ultimately immaterial for the simple reason that the MSO/OS
conducted a second search in July 2005, Suppl. DeMaio Decl. ¶ 6. In the course of its second
search, the MSO/OS employed a wide range of search terms targeted to locate and identify
documents responsive to Schoenman’s Request and these terms, which included numerous
variants of Schoenman’s name and his Social Security Number, were “reasonably calculated to
uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
Second, Schoenman argues, in essence, that the adequacy of the CIA’s search cannot be
determined in the absence of information concerning the precise content of the MSO’s
12
instructions to the MSO/OS, the number of “hits” obtained in response to particular search terms
used during the course of the search, and the interplay between certain search terms.8 Pl.’s Opp’n
at 3. The Court reiterates that agencies are under no obligation to create or generate records in
the course of discharging their obligations under FOIA and the Privacy Act and once again
“declines to condone” Schoenman’s veiled attempt to secure discovery as to the exhaustive
details of the scope and method of the CIA’s search. Schoenman, 2009 WL 763065, at *18. The
sworn declarations submitted by the CIA are sufficiently detailed to establish that the agency
conducted an informed search reasonably calculated to locate responsive documents, and
Schoenman’s speculation that his name is so common that one would expect a certain number of
“hits” on a search for his name, Pl.’s Opp’n at 3, falls woefully short of the sort of evidence that
would raise a “substantial doubt” as to the adequacy of the CIA’s search. Iturralde, 315 F.3d at
314.
Third, Schoenman challenges the CIA’s decision to task only the MSO/OS—and not the
other four offices within the MSO—with the responsibility for conducting a search for records
responsive to his Request. Pl.’s Opp’n at 3-4. In its sworn declarations, the CIA explains that
the MSO, as the administrative support arm of the CIA, maintains records on individuals with
whom the CIA has some sort of past or present relationship. Suppl. DeMaio Decl. ¶¶ 4-5. In
particular, the security database maintained by the MSO/OS contains security-related records,
dating from the inception of the CIA, concerning current and former CIA employees and
8
Schoenman suggests that “it is not entirely clear that [his] name and social security
number were independently on [sic] conjunctively searched.” Pl.’s Opp’n at 3. To the contrary,
the record is clear that the MSO/OS’s search extended to “any records containing [Schoenman’s]
name or social security number.” Suppl. DeMaio Decl. ¶ 6 (emphasis added).
13
individuals for whom some sort of security processing or evaluation has been required, including
individuals who come to the CIA’s attention due to a counterintelligence interest. Id. ¶ 5.
Unsurprisingly, where the CIA has no relationship with a given individual, the MSO typically
will have no records concerning that individual. Id. Similarly, where the MSO/OS has no
records concerning an individual in its security database, it is unlikely that there will be records
for that individual anywhere else in the MSO. Id. ¶ 7. Accordingly, despite Schoenman’s
personal belief to the contrary, the CIA has explained in a sufficiently detailed and non-
conclusory manner that it determined, based on function of the MSO and the nature of the
records maintained by the MSO/OS vis-à-vis the MSO as a whole, that the other component parts
of the MSO—i.e. the Chief Information Officer, the Chief Financial Officer, the Chief Human
Resources Officer, and Global Support—are not reasonably likely to have records pertaining to
an individual where there are no records for that individual in the security database maintained by
the MSO/OS. DeMaio Decl. ¶ 26; Suppl. DeMaio Decl. ¶¶ 6-7. It is by now well-established
that an agency is not required to search every record system for responsive documents, Oglesby,
920 F.2d at 68, and here the CIA has explained in sufficient, if less than perfect, detail the
reasons behind “its determination that the record systems searched are the only ones likely to
include responsive records,” Schoenman, 2009 WL 763065, at *11. Indeed, although
Schoenman has never adduced any competent evidence that he presently has, or had in the past,
the sort of relationship that might entail generating documents within the MSO, the CIA
nevertheless proceeded to conduct a search for responsive records within the MSO “out of an
abundance of caution and in the interest of completeness.” Suppl. DeMaio Decl. ¶ 5.
Fourth, and in a similar vein, Schoenman suggests that the CIA has failed to adduce
14
sufficient information concerning the precise contents of the MSO/OS electronic database such
that would allow the Court to assess whether or not another MSO component part would likely
maintain responsive records. Pl.’s Opp’n at 4-5. The Court disagrees. As set forth in greater
detail elsewhere, the CIA has discharged its burden of providing reasonable—not
exhaustive—detail concerning the scope and the method of its search and it has averred that all
sources reasonably likely to contain information responsive to Schoenman’s Request have been
searched. The deficiency in the CIA’s description of its search, if any, is no more than marginal
and “does not render the grant of summary judgment inappropriate.” Perry, 684 F.2d at 127.
Fifth, and finally, Schoenman complains that “[i]t is unclear whether the [MSO/OS]
search is based on one or more than one electronic databases.” Pl.’s Opp’n at 4. Here,
Schoenman’s complaint is predicated upon a typographical error in the sworn declarations
submitted by the CIA; the CIA has since mooted Schoenman’s argument by clarifying that the
MSO/OS’s search was limited to a single electronic database—i.e., the electronic database that
contains records of security-related documents dating from the agency’s inception. Def.’s Reply
at 7 n.4. In any event, the CIA has identified with sufficient particularity which record systems
were reasonably likely to turn up information responsive to Schoenman’s Request and has
described its search with respect to those systems with enough detail to permit this Court to
assess the adequacy of the search. Oglesby, 920 F.2d at 68.
To be sure, the CIA’s description of its search hypothetically could have been more
detailed, but the law requires not an exhaustive or meticulous account of the agency’s search, but
merely a reasonably detailed one. Perry, 684 F.2d at 127. Perfection is not now, and never has
been, the relevant standard. The record evidences that the CIA conducted an informed, detailed,
15
and good faith search of sources likely to reveal documents maintained by the MSO and
responsive to Schoenman’s Request, and because Schoenman has adduced no countervailing
evidence that would raise a “substantial doubt” as to the adequacy of the CIA’s search, Iturralde,
315 F.3d at 314, the Court finds that there is no genuine issue as to the reasonableness of the
CIA’s search within the MSO. Accordingly, the Court shall GRANT the CIA’s [64] Motion for
Summary Judgment and DENY Schoenman’s [70] Cross-Motion for Partial Summary Judgment
as they pertain to the adequacy of the CIA’s search for records within the MSO.
2. The CIA Has Carried its Burden of Establishing the Reasonableness of its
Search within the DO
Within the CIA, the DO is responsible for the clandestine collection of foreign
intelligence information from human sources. DeMaio Decl. ¶ 23; Suppl. DeMaio Decl. ¶ 8. Its
records system contains information concerning persons or entities that are of foreign intelligence
or counterintelligence interest to the CIA and other agencies in the United States. DeMaio Decl.
¶ 23; Suppl. DeMaio Decl. ¶ 8. The DO maintains an electronic database that contains the
records under the DO’s control, which includes some of the CIA’s most sensitive operational
information. Suppl. DeMaio Decl. ¶ 9. Because the public disclosure of the specific
organization and search capabilities of the electronic database could put the information
contained in the database at risk, the structure of the database is treated as an intelligence method
and is protected from public disclosure. Id. ¶ 10. Nevertheless, the CIA explains that the
database can be searched for personal names as indexed into specific fields—that is, if a name is
not indexed into one of these fields, it is not retrievable. Id. At the same time, provided it
appears in a searchable field, a name need not appear in the title or subject line of a document in
order to retrieve responsive information. Id. Moreover, the database groups names and accounts
16
automatically for variations or errors in spelling. Id.
The CIA avers that, once tasked by IMS with the responsibility for searching for
documents responsive to Schoenman’s Request, the DO “made all reasonable efforts to identify
and retrieve any [responsive] records.” DeMaio Decl. ¶ 35. Specifically, the task was assigned
to a trained officer who routinely conducts searches within the DO’s electronic database, who
searched for records using Schoenman’s first and last name, and variations thereof. DeMaio
Decl. ¶ 35; Suppl. DeMaio Decl. ¶¶ 9, 11. The universe of records searched included so-called
“exempt operational files,” which are excluded from searches where, unlike here, the request
does not fall within the ambit of the Privacy Act. Suppl. DeMaio Decl. ¶ 12. Ultimately, the DO
located a total of five responsive documents, each of which was withheld in its entirety. DeMaio
Decl. ¶ 35; Suppl. DeMaio Decl. ¶ 11. The Court previously upheld the withholding of these
five documents in full. See Schoenman, 2009 WL 763065, at *19-25.
Here too, the CIA has discharged its burden of describing in reasonable detail the scope
and method of the search it performed and averring that all files likely to contain documents
responsive to Schoenman’s Request were searched. Perry, 684 F.2d at 127. The record permits
but one conclusion—the CIA’s search within the DO was “reasonably calculated to uncover all
relevant documents.” Weisberg, 705 F.2d at 1351. Because the record evidences that the CIA
conducted an informed, detailed, and good faith search of sources likely to reveal documents
maintained by the DO and responsive to Schoenman’s Request, the burden shifts to Schoenman
to provide “‘countervailing evidence’ as to the adequacy of the agency’s search.” Iturralde, 315
F.3d at 314. Schoenman tenders two principal arguments as to why the CIA’s search within the
DO should be held inadequate, neither of which is of any avail. The Court addresses each
17
argument in turn.
First, Schoenman speculates that the DO’s electronic database is not designed to allow for
full-text searches of all DO records, but rather is confined to more discrete indexed, field-based
searches. Pl.’s Opp’n at 5. Similarly, without any support in the record, Schoenman periodically
conjectures that certain information may not be indexed in a searchable field. Id. at 5-6.
Understandably, Schoenman may have his own ideas as to how the CIA should organize its
records, but the CIA is under no obligation to reorganize its files to satisfy Schoenman’s Request,
McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1100 (D.C. Cir. 1983), and imposing
Schoenman’s preferences upon the CIA would extend far beyond the sort of reasonable efforts
required of agencies in responding to validly lodged requests under FOIA and the Privacy Act,
Landmark Legal Found. v. Envtl. Prot. Agency, 272 F. Supp. 2d 59, 63 (D.D.C. 2003).
Second, and in a similar vein, Schoenman poses a variety of questions about the specific
details of the organization and contents of the DO’s electronic database. Asserting, without any
citation to competent record evidence, that the DO is “known for . . . decentralized filing
systems” and that the DO’s component parts maintain “chron” or “chronological” files, “registry”
files, and so-called “soft” files, Schoenman asks whether these types of documents are
maintained in the DO’s database and whether such information appears in a searchable field.
Pl.’s Opp’n at 5-6. Schoenman is simply mistaken that, “[u]ntil these questions have been
addressed, the CIA cannot show that its search efforts have been adequate.” Id. at 6.
Notwithstanding the questions conjured by Schoenman, the CIA has discharged its burden of
providing reasonable—not exhaustive—detail concerning the scope and method of its search and
it has averred that all sources within the DO reasonably likely to contain information responsive
18
to Schoenman’s Request have been searched. Indeed, the sworn declarations submitted by the
CIA indicate that the single electronic database searched in this case “collectively[] contains the
CIA’s records under the control of the DO.” Suppl. DeMaio Decl. ¶ 9. Despite Schoenman’s
unsupported conjecture to the contrary, the Court finds that there is no genuine issue as to the
reasonableness of the CIA’s search as it pertains to the DO. Viewed from a slightly different
perspective, Schoenman’s questions are akin to requests for discovery, but discovery is
unavailable where, as here, the agency’s declarations are sufficiently detailed. Wolf v. Cent.
Intelligence Agency, 569 F. Supp. 2d 1, 9-10 (D.D.C. 2008).
In short, the record evidences that the CIA conducted an informed, detailed, and good
faith search of sources likely to reveal documents maintained by the DO and responsive to
Schoenman’s Request, and because Schoenman has adduced no countervailing evidence that
would raise a “substantial doubt” as to the adequacy of the CIA’s search, Iturralde, 315 F.3d at
314, the Court finds that there is no genuine issue as to the reasonableness of the CIA’s search
within the DO. Accordingly, the Court shall GRANT the CIA’s [64] Motion for Summary
Judgment and DENY Schoenman’s [70] Cross-Motion for Partial Summary Judgment as they
pertain to the adequacy of the CIA’s search for records within the DO.
3. Schoenman’s Allegations as to “Missing Records” Do Not Undermine the
Adequacy of the CIA’s Search for Records
When it last had the opportunity to address the parties’ cross-motions for summary
judgment, the Court, with one exception, uniformly rejected Schoenman’s contentions that the
CIA’s search for records responsive to his Request was inadequate based upon his speculation
that the CIA should have produced certain “missing records.” Schoenman, 2009 WL 763065, at
*16-18. The single exception pertained to Schoenman’s request for “all index references,” which
19
the CIA admittedly had not produced. Id. at *18. Since the CIA had not offered any explanation
as to why these documents were not produced, the Court instructed the CIA to submit
supplemental materials “provid[ing] an explanation for its failure to provide ‘index references’ to
[Schoenman], as requested.’” Id. As instructed, the CIA has explained why the documents were
not produced, and the Court is satisfied with its explanation.
Whereas physical indices or hard copy search records were used before the agency
transitioned to electronic records, all the relevant records in this action have been consolidated
into electronic databases. Suppl. DeMaio Decl. ¶ 16. Hence, the record systems at issue here
were both electronic databases, meaning that, where the subject of a search is an individual, the
searching officer simply enters the individual’s name (or variants thereof) in the electronic
database rather than using physical or hard copy search records. Id. ¶ 14. Accordingly, the CIA
credibly explains that it “did not provide any ‘index references’ to [Schoenman] because of the
simple fact that none exist.” Id. ¶ 13. Simply put, Schoenman’s unsupported allegation that the
CIA’s explanation lacks credibility and his speculation that such documents simply must exist
does not suffice. Pl.’s Opp’n at 6-7. As Schoenman has been consistently reminded by this
Court, his personal “conjecture ‘is hardly proof that such documents exist.’” Schoenman, 2009
WL 763065, at *12 (citing Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1120 (D.C. Cir.
2007)); see also Steinberg, 23 F.3d at 552 (“mere speculation that as yet uncovered documents
may exist does not undermine the finding that the agency conducted a reasonable search.”).
B. Schoenman’s Belatedly Introduced Arguments Concerning the Adequacy of the
CIA’s Search Are Without Merit
Despite the fact that this Court clearly limited supplemental briefing on the parties’ cross-
motions for summary judgment to a single, discrete issue—i.e., the adequacy of the CIA’s search
20
within the MSO and the DO, including the propriety of the CIA’s non-production of “index
references”—Schoenman injects three additional issues into his supplemental papers.
First, Schoenman suggests that there are “several examples outside th is [sic] case where
CIA searches have proved not to produce relevant records.” Pl.’s Opp’n at 7. In support, he
submits a declaration executed by his own counsel in September 2002 in connection with an
unrelated FOIA action (and therefore long before the parties’ initial round of briefing on their
cross-motions for summary judgment) and a four-paragraph declaration from Professor David
Kaiser outlining in bare and unilluminating terms an unrelated FOIA request he submitted to the
CIA over twenty years ago. See Decl. of James H. Lesar, Docket No. [116-3]; Decl. of David
Kaiser, Docket No. [116-5]. Suffice it to say, neither declaration has any bearing upon the
reasonableness of the CIA’s search for documents responsive to Schoenman’s Request in this
action, nor even remotely approximates the sort of countervailing evidence that would raise a
“substantial doubt” as to the adequacy of the CIA’s search for records in the instant case.9
Second, long after the parties had already completed the permitted supplemental briefing
and without first seeking the Court’s leave, Schoenman submitted additional materials that he
claims “bear on issues regarding the failure of the CIA to demonstrate that it has conducted an
adequate search for records”—namely, (a) a declaration from Professor G. Robert Blakey
submitted in an unrelated FOIA action in which Professor Blakey outlines his personal belief that
certain CIA records at issue in that action must have been destroyed, and (b) a decades-old
9
The Court pauses to emphasize that, despite Schoenman’s consistent efforts to draw the
attention elsewhere, the only question properly before this Court is the propriety of the CIA’s
response to Schoenman’s FOIA Request; the Court shall not permit this action to devolve into
multiple mini-trials concerning factual allegations pertaining to separate FOIA requests that are,
frankly, irrelevant to the present action.
21
memorandum originating with the National Security Agency (the “NSA”) that mentions
Schoenman and is listed as having been directed to Richard Helms, then the Director of Central
Intelligence, and Vice Admiral Rufus L. Taylor, ostensibly of the CIA. Pl.’s Notice of Filing at
1-2; see also Aff. of Professor G. Robert Blakey, Docket No. [122-2]; Ex. from Oglesby Case,
Docket No. [122-1]. Neither document undermines the reasonableness of the CIA’s search.
Professor Blakey’s declaration, like the two documents just discussed, simply has no bearing
upon the CIA’s search for documents in the instant case and falls woefully short of the sort of
countervailing evidence that would raise a “substantial doubt” as to the adequacy of the CIA’s
search for records here. The same holds true for the NSA memorandum; even assuming,
arguendo, that the memorandum was sent to and at some point retained by the CIA, “the [mere]
fact that a particular document was not found does not demonstrate the inadequacy of a search.”10
Boyd, 475 F.3d at 391. The CIA’s supporting declarations establish its compliance with FOIA,
and no more is required under these circumstances. Budik, 2010 WL 3833828, at *7.
10
Nor does Schoenman ever adequately explain how a memorandum prepared by the
NSA unequivocally evidences “that the CIA . . . [was] involved in extensive surveillance against
Schoenman,” documented such surveillance, and therefore must have additional documents
responsive to Schoenman’s Request. Pl.’s Notice of Filing at 2 (emphasis added). In any event,
even if it had been timely tendered, the memorandum would not, as Schoenman appears to
suggest, come remotely close to justifying revisiting the Court’s prior determination that the
CIA’s search for records was reasonable even though it excluded the DCI Area and the DI from
its search for responsive records. See id. at 2-3. As set forth in the Court’s prior opinion, “the
CIA has explained in a reasonably detailed and nonconclusory manner that it determined, based
on the respective functions of each directorate, that only the DO and the MSO were likely to
contain responsive material and neither the DI [n]or the DCI Area was likely to have responsive
records.” Schoenman, 2009 WL 763065, at *11. The same holds true for the DS&T, which
Schoenman notably elected not to include as part of his challenge to the sufficiency of the CIA’s
search on the parties’ first round of briefing. Id. at *10 n.12. The CIA has explained in sufficient
detail why the DS&T, which is responsible for creating and applying technologies to fulfill
intelligence requirements, was not likely to have responsive records. DeMaio Decl. ¶¶ 24, 34.
22
Third, once again long after the parties had already completed the limited supplemental
briefing permitted by the Court, Schoenman filed his Motion to Supplement the Record in light
of the referral of certain documents by the Federal Bureau of Investigation (the “FBI”) to the CIA
for purposes of FOIA processing. See generally Pl.’s Mot. to Suppl. Mem. Schoenman posits
that the CIA’s “failure to locate and account for these records during its search of its files raises
troubling questions about the nature and extent of the CIA’s search.” Id. at 2. The 119
documents at issue—first referred to the CIA on July 6, 2009—consist of documents that
originated with the CIA. Decl. of Dennis J. Argall (“Argall Decl.”), Docket No. [126-1], ¶ 6 &
Ex. B.11 Of the 119 documents, only 6 pertain to Schoenman himself. Id. The remaining 113
pertain to Lord Bertrand Russell, the International War Crimes Tribunal, the Bertrand Russell
Peace Foundation, and the Citizens Commission of Inquiry. Id.Schoenman focuses on the six documents, consisting of fourteen pages, that pertain to
him personally. According the Schoenman, “[t]he obvious question which must be asked is how
the CIA’s search managed to overlook each and every one of the documents which the FBI
identified as requiring a referral to the CIA when it conducted its own search for records on
Schoenman[.]” Pl.’s Mot. to Suppl. Reply at 2. Schoenman speculates that “[i]t would appear
that the CIA’s search may have been formulated in some way, or the CIA’s record systems
structure [sic] in some way, which enabled this to happen.” Id. However, consistent with the
guiding principle that the adequacy of a FOIA search is not determined “by the fruits of the
search,” Iturralde, 315 F.3d at 315, “the [mere] fact that a particular document was not found
11
Additionally, the FBI forwarded another 145 documents that originated with the FBI
but contained information concerning the CIA. Argall Decl. Ex. B.
23
does not demonstrate the inadequacy of a search,” Boyd, 475 F.3d at 391. The CIA is correct that
it is not duty-bound to account for documents which a requester has in some way identified,
provided it has made a diligent search for documents in those places where they might be
expected to be found. See Iturralde, 315 F.3d at 315 (“After all, particular documents may have
been accidentally lost or destroyed, or a reasonable and thorough search may have missed
them.”). Here, the record evidences that the CIA conducted an informed, detailed, and good faith
search of sources likely to reveal documents responsive to Schoenman’s Request, and
Schoenman’s reliance on these 6 documents simply falls far short of raising the “substantial
doubt” required to undermine the CIA’s prima facie case of reasonableness. Id. at 314.
Schoenman does not dispute that the remaining 113 documents referred to the CIA by the
FBI relate not to him personally, but rather to Lord Bertrand Russell and various organizations.
Pl.’s Mot. to Suppl. Reply at 2. Nor does he dispute that the Court previously dismissed his
claims as they pertain to these records based on his failure to exhaust his administrative
remedies. See Schoenman, 2006 WL 1126813, at *19-20. Rather, he speculates that, because he
was “a very active principal in each of these organizations,” “[i]t is to be expected that a search
under his name for all records in CIA files would result in some hits on records which pertained
to these other subjects.” Pl.’s Mot. to Suppl. Reply at 3. However, as Schoenman has been
reminded time and time again, “mere speculation that as [of] yet uncovered documents may exist
does not undermine the finding that the agency conducted a reasonable search.” Steinberg, 23
F.3d at 552. Indeed, an agency’s lack of success in locating responsive records does not render
the search inadequate provided the agency’s supporting declarations establish its compliance
with FOIA. Again, the record here evidences that the CIA conducted an informed, detailed, and
24
good faith search of sources likely to reveal documents maintained by the CIA and responsive to
Schoenman’s Request for records pertaining to him personally. In addition, because Schoenman
has adduced no countervailing evidence that would raise a “substantial doubt” as to the adequacy
of the CIA’s search, Iturralde, 315 F.3d at 314, the Court finds that there is no genuine issue as
to the reasonableness of the CIA’s search. Accordingly, while the Court shall GRANT
Schoenman’s [124] Motion to Supplement the Record, it nevertheless reaches the same
conclusion as to the parties’ respective cross-motions for summary judgment.
C. Schoenman is Not Entitled to Discovery
As he has on multiple occasions in this action, Schoenman again requests that discovery
be had to address the adequacy of the CIA’s search. Pl.’s Opp’n at 2. However, where, as here,
the agency’s declarations are sufficiently detailed and the district court is satisfied that no factual
dispute remains, discovery should be denied. Wolf, 569 F. Supp. 2d at 9-10. Because
Schoenman has failed to raise substantial, or even colorable, doubt concerning the adequacy or
good faith of the CIA’s search, Iturralde, 315 F.3d at 314, the Court shall once again DENY
Schoenman’s request for discovery.
IV. CONCLUSION
The Court has considered the remaining arguments tendered by the parties and has
concluded that they are without merit. Therefore, and for the reasons set forth above, the Court
shall GRANT Schoenman’s [124] Motion to Supplement the Record, but nevertheless GRANT
the CIA’s [64] Motion for Summary Judgment and DENY Schoenman’s [70] Cross-Motion for
Partial Summary Judgment as they pertain to the adequacy of the CIA’s search for records within
the MSO and the DO, including the propriety of the CIA’s failure to produce “index references.”
25
Furthermore, the Court shall DENY Schoenman’s request for discovery. An appropriate Order
accompanies this Memorandum Opinion.
Date: January 21, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
26