Bryant v. Central Intelligence Agency ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
LARRY W. BRYANT, )
)
Plaintiff, )
)
v. ) Civ. Action No. 09-0940 (EGS)
)
CENTRAL INTELLIGENCE AGENCY, )
ET AL. )
)
Defendants. )
)
MEMORANDUM OPINION
Pending before the Court in this Freedom of Information Act
case is defendants’ motion for partial summary judgment. Upon
consideration of the motion, the response and reply thereto, the
applicable law, the entire record, and for the reasons set forth
below, the defendants’ motion for partial summary judgment is
hereby GRANTED.
I. BACKGROUND
A. The Initial FOIA Request and Complaint
Plaintiff describes himself as the Director of the
Washington D.C. Office of Citizens Against UFO Secrecy who
“gathers, researches, and publishes documents and information and
analysis concerning Unidentified Flying Objects.” Compl. ¶ 4.
In addition, plaintiff is a columnist for the monthly periodical
UFO Magazine. Compl. ¶ 4. In August of 2008 the plaintiff sent
the Central Intelligence Agency (“CIA”) a request for information
under the Freedom of Information Act (“FOIA”). In particular,
plaintiff requested “CIA-received and CIA-generated records as
pertain to. . . cases of airborne UFO encounters reportedly
occurring since Nov. 17, 1986.” Compl. Ex. A. Plaintiff also
specifically requested information relating to “a 1987 special
meeting at FAA headquarters in Washington D.C. to discuss and
evaluate certain official evidence of the intrusive UFO encounter
experienced on Nov. 17, 1986 by the Japanese flight crew (No.
1628) of a 747 cargo jet.” Compl. Ex. A. In the same request,
he asked to be granted status as a representative of the news
media and thereby be exempt from certain fees typically charged
for a FOIA request. Compl. Ex. A.
In their response to plaintiff's FOIA request, the CIA
offered to provide the plaintiff with 2,779 pages of materials at
the cost of $267.90, describing the materials as records already
located in response to “numerous previous request[s]” for
information regarding UFOs. Compl. Ex. B. Plaintiff's request
for a fee waiver was denied on the grounds that “the information
[plaintiff] seek[s] is already in the public domain and its
re-release would not likely contribute significantly to public
understanding of the operations and activities of the United
States Government.” Compl. Ex. B. Plaintiff appealed the
agency's decision, including the denial of the request for a fee
waiver. Compl. Ex. C. The CIA again denied the request for a
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fee waiver. Compl. Ex. D. In their letter denying the appeal,
the CIA also explained that plaintiff would be charged the
$267.90 irrespective of whether he was placed in the news media
fee category.1 Compl. Ex. D.
Plaintiff brought this action on May 20, 2009. The first
count2 of the Complaint alleges that defendants “did not use the
level of diligence and good faith” in responding to his request
and that defendants “conducted no search to respond to
Plaintiff's FOIA Request.” Compl. ¶ 12. The second count
alleges that, as a representative of the news media, he is
entitled to a waiver of all fees except photocopying fees
associated with his FOIA request. Compl. ¶ 17. Plaintiff
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More particularly, the CIA explained that “since records
responsive to the subject of your request have been previously
released, and no additional searches were conducted following
receipt of your request, you would be responsible for copying
costs associated with this request regardless of fee category
determination. . . . [C]opying costs are ten cents per page
less the first 100 pages. These copying fees would apply even if
we were to place you into the . . . news media fee category.”
Compl. Ex. D.
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The Complaint contains three counts. The first two are
labeled identically as “Count II” and both are titled “News Media
Representative Status.” The Court assumes that the first
“Count II” was erroneously labeled and intended by the Plaintiff
to be the first count. Furthermore, the Court assumes that the
first count was also incorrectly titled since the paragraphs
therein relate to the allegation that defendants “conducted no
search to respond to Plaintiff’s FOIA Request” rather than to the
news media representative status that is the subject of the
allegations in the second count. The third count is a demand for
attorneys’ fees.
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further contends that defendants used an improperly narrow
definition of “news media representative status” when they
refused to grant him such status. Compl. ¶ 19. Plaintiff seeks
a declaration that he was improperly denied news media
representative status, an order that the defendants grant him
such status, and damages including attorneys fees. Compl. ¶ 6.
B. Reopening of Plaintiff's FOIA Request
On June 23, 2009, roughly one month after plaintiff filed
this lawsuit, the CIA sent a letter to plaintiff informing
plaintiff that, (i) the CIA would reopen his FOIA request, (ii)
the CIA would conduct another search for records in existence
through June 15, 2009, and (iii) the CIA would place the
plaintiff in the news media fee category and only charge him for
photocopying costs. Defs.' Summ. J. Mot. Ex. E. According to
defendants, new searches were then conducted for responsive
information, and the CIA followed up with another letter dated
October 21, 2009. Defs.' Summ. J. Mot. Ex. E.
The October 21st letter informed the plaintiff that new
materials responsive to his general request had been located.
Defs.' Summ. J. Mot. Ex. F. However, because the
newly-identified responsive materials were not “originated by the
CIA,” the request would need to be referred to the originating
agencies. Defs.' Summ. J. Mot. Ex. F. Plaintiff received
subsequent FOIA response letters from the NSA and the Department
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of State regarding these additional materials, including five
pages of materials with redactions from the Department of State.
Pl.'s Resp. to Defs.' Statement of Material Facts ¶ 36.
In their pending motion for partial summary judgment3,
defendants seek a ruling that they fulfilled their FOIA
obligations in conducting a reasonably diligent search. In
addition, they argue that plaintiff's second count is moot
because plaintiff was placed in the media fee category subsequent
to the filing of the complaint.
II. STANDARD OF REVIEW
The Court may grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual
assertions in the moving party's affidavits or declarations may
be accepted as true unless the opposing party submits his own
3
Defendants have moved only for partial summary judgment
because they agree that plaintiff maintains the right to
challenge the decisions by the NSA and the Department of State to
redact or withhold any of the documents referred to them. (As
discussed above, a few pages responsive to plaintiff’s request
were forwarded to these other agencies for a determination
because the CIA concluded the documents “originated” from them.)
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affidavits or declarations or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
In a FOIA case, the Court may grant summary judgment based
on the information provided by the agency in affidavits or
declarations when the affidavits or declarations describe “the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Services,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (agency
affidavits must be “relatively detailed and non-conclusory”).
III. ANALYSIS
Three issues are raised by defendants' motion for partial
summary judgment and plaintiff's opposition thereto. First, the
Court must address whether defendant has failed to conduct a
reasonably diligent search such that permitting plaintiff to
conduct further discovery would be necessary. Second, the Court
must consider defendants' argument that plaintiff's second claim,
relating to the news media representative status, is moot.
Finally the Court must consider whether an award of attorneys'
fees to plaintiff is appropriate. For the reasons discussed
below, the Court concludes that the defendants prevail on all
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three of these issues. Each argument will now be discussed in
turn.
A. Defendants Have Provided Sufficient Evidence of the
Completeness of Their Search, and Discovery in this
Case is Unwarranted
Although an agency bears the burden of showing that its
search in response to a FOIA request was sufficiently diligent,
affidavits or declarations by agency officials may provide
sufficient evidence to warrant summary judgment. In particular,
courts may rely on agency affidavits so long as they are
reasonably detailed and there is no evidence they are being
offered in bad faith. See, e.g., SafeCard Servs., Inc. 926 F.2d
at 1200; Military Audit Project, 656 F.2d at 738. Furthermore,
“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. 926 F.2d at 1200 (internal quotation omitted).
In support of its claim that it conducted a reasonably
diligent search, the CIA has submitted the declaration of Delores
Nelson, the Information & Privacy Coordinator of the CIA. Ms.
Nelson's declaration provides a detailed description of the
various departments within the CIA, the type of records each
department maintains, the procedures the CIA uses to process FOIA
requests generally, the specific steps taken to respond to
plaintiff's request, and the search terms used to accomplish the
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search for documents responsive to plaintiff's request.
Plaintiff “disputes the reliability, accuracy, and credibility of
Defendant’s sole witness[] (Delores Nelson).” Pl.'s Opp'n at 9.
He further argues that Ms. Nelson's declaration is inadequate
because it “makes sweeping and insufficiently supported
statements about the systems, procedures and policies used by the
CIA.” Pl.'s Opp'n at 9. Finally, plaintiff questions whether
Ms. Nelson is a suitable affiant, with personal knowledge, and
states that discovery is necessary to evaluate the worth of Ms.
Nelson's declaration. Pl.'s Opp'n at 9.
In support of his position, plaintiff relies on Weisberg v.
U.S. Dep't of Justice, 627 F.2d 365 (D.C. Cir. 1980). In that
case, the court did indeed conclude that “the Department's
demonstration that it disclosed all available material within the
scope of plaintiff's request was inadequate for purposes of
summary judgment.” Id. at 366 (quotation omitted). However, the
affidavit relied upon by the defendant in Weisberg was
substantially different than the one relied upon in the instant
case. The affidavit in Weisberg simply stated that the affiant
“‘has conducted a review of FBI files which would contain
information that [plaintiff] has requested. . . . The FBI files
to the best of my knowledge do not include any information
requested by [plaintiff] other than the information made
available to him.’” Not surprisingly, the court in Weisberg held
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that the affidavit gave “no detail as to the scope of the
examination and thus is insufficient as a matter of law to
establish its completeness.” Id.In contrast, the declaration provided by the CIA in the
instant case offers seventeen pages of detail regarding the type
of records the CIA maintains, the procedures the CIA uses to
process FOIA requests generally, the specific steps taken to
respond to plaintiff's request, and the search terms used to
accomplish the search for documents responsive to plaintiff's
request. Defs.’ Mem. Ex. G, Declaration of Dolores Nelson
(“Nelson Decl.”) Furthermore, Ms. Nelson is responsible for
supervising and coordinating FOIA requests, and she can therefore
be relied upon as an individual with personal knowledge. Nelson
Decl. ¶¶ 1-5. The agency affidavit in the instant case is
entitled to substantial weight.
In light of the Court's conclusion that the declaration
submitted by the defendants is sufficient to support their
motion, the plaintiff is not entitled to further discovery.
B. Plaintiff's Second Claim is Moot
Defendants argue that plaintiff's second claim, relating to
the CIA's initial denial of news media representative status is
moot because, in their October 21, 2009 letter to plaintiff, the
CIA granted plaintiff such status. The Court agrees. Plaintiff
himself admits that he has been granted news media representative
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status. See Plaintiff Decl. ¶ 2 (“The CIA initially denied me
news media representative status under the Freedom of Information
Act as regards the instant civil litigation, and did not grant me
such status until after I filed the instant Complaint.”).
Contrary to plaintiff's assertions that his claim is not moot
because he was only granted news media representative status
after the complaint was filed, the timing of the CIA's decision
to grant him the status is irrelevant. See Montgomery Envtl.
Coal. v. Costle, 646 F.2d 568, 579 (D.C. Cir. 1980) (“federal
courts are without power to decide questions that cannot affect
the rights of litigants in the case before them.”) (quoting North
Carolina v. Rice, 404 U.S. 244,246 (1971)).
C. Plaintiff is not Entitled to Attorneys' Fees
Plaintiff also seeks an award of attorneys fees pursuant to
5 U.S.C. § 552(a)(4)(E).4 He argues that attorneys fees should
be awarded “because before filing his Complaint he found the news
media representative status denial to be a hurdle to his
submitting FOIA requests to the CIA.” Pl.’s Opp’n at 10.
4
5 U.S.C. § 552(a)(4)(E) provides: “(i) The court may
assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any case under this
section in which the complainant has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained relief
through either-- (I) a judicial order, or an enforceable written
agreement or consent decree; or (II) a voluntary or unilateral
change in position by the agency, if the complainant's claim is
not insubstantial.”
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However, even assuming granting the plaintiff this status is
a “voluntary or unilateral change in position by the agency”
within the meaning of 5 U.S.C. § 552(a)(4)(E), the statute also
requires that the change in position by the agency be “not
insubstantial.” Id. In making this determination, district
courts are to consider “at least four criteria in determining
whether a substantially prevailing FOIA litigant is entitled to
attorney's fees: (1) the public benefit derived from the case;
(2) the commercial benefit to the plaintiff; (3) the nature of
the plaintiff’s interest in the records; and (4) the
reasonableness of the agency’s withholding of the requested
documents.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)
(citations omitted). Applying the standard laid out in Davy, the
plaintiff has failed to show he is entitled to attorneys’ fees.
IV. CONCLUSION
For the foregoing reasons, it is hereby ordered that
defendants’ motion for partial summary judgment is GRANTED. An
appropriate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 30, 2010
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