Whitaker v. Central Intelligence Agency , 64 F. Supp. 3d 55 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN WHITAKER,
Plaintiff,
v.
Civil Action No. 12-316 (CKK)
CENTRAL INTELLIGENCE AGENCY,
et al.,
Defendants.
MEMORANDUM OPINION
(August 15, 2014)
Plaintiff Stephen Whitaker has filed suit against Defendants the Central Intelligence
Agency, the United States Department of Defense, and the United States Department of State
challenging Defendants’ processing of his requests pursuant to the Freedom of Information Act
and the Privacy Act. By its previous Order and Memorandum Opinion in this case, this Court
granted in part and denied in part Defendants’ [5] Motion for Summary Judgment. See Order,
ECF No. [24]; Mem. Op., ECF No. [25]. In response to this ruling, Defendants the Central
Intelligence Agency and the United States Department of State (the only remaining Defendants
in this case) have filed the present [28] Renewed Motion for Summary Judgment. In response to
this filing, Plaintiff has filed a [29] Notice of Non-Opposition to Defendants’ Renewed Motion
for Summary Judgment. Upon consideration of the pleadings 1, the relevant legal authorities, and
1
Complaint, ECF No. [1] (“Compl.”); Defs.’ Mot. for Summ. J., ECF No. [5] (“Defs.’
MSJ”); Errata, ECF No. [11]; Pl.’s Opp’n to Defs.’ Mot. for Summ. J., ECF No. [14-1] (“Pl.’s
Opp’n”); Defs.’ Reply Mem. in Supp. of Defs.’ Mot. for Summ. J., ECF No. [20] (“Defs.’
Reply”); Notice of Supplemental Authority, ECF No. [21]; Notice of Filing Document for In
Camera Review, ECF No. [23]; Defs.’ Renewed Mot. for Summ. J., ECF No. [28] (“Defs.’
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the record as a whole, the Court GRANTS Defendants’ [28] Renewed Motion for Summary
Judgment. Accordingly, this matter is DISMISSED WITH PREJUDICE.
I. BACKGROUND
A. Factual Background
Between January 2008 and January 2012, Plaintiff filed a series of requests with
Defendants pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the
Privacy Act, 5 U.S.C. § 552a. These requests sought records pertaining to the disappearance of a
DC-3 airplane, three other planes, Harold Whitaker (Plaintiff’s father) and four other individuals,
the United States Army’s investigation into the disappearance of the plane, the Plaintiff himself,
and the Plaintiff’s previous FOIA requests. The details of these requests are set out below.
1. CIA
On February 15, 2010, Plaintiff sent a FOIA request to the CIA requesting information
“relat[ing] in any way to five individuals,” including Plaintiff’s father, Harold W. Whitaker, and
“four DC-3 aircraft.” See Defs.’ MSJ, Ex. A (Declaration of Martha M. Lutz, Information
Review Officer, Director’s Area, Central Intelligence Agency) (“Lutz Decl.”) ¶ 9; Compl. at 5.
Plaintiff defined the scope of his request to include any information that would reveal whether
“any of these persons or aircraft were later found to be employed or contracted by the CIA for
service in Central America or elsewhere.” Lutz Decl. ¶ 9. The CIA acknowledged and
responded to this request by letter on February 24, 2010, assigning to the request Reference
Number F-2010-00611. Id. ¶ 10. In this letter, Defendant CIA issued a Glomar response,
refusing to confirm or deny the existence or non-existence of records responsive to Plaintiff’s
request. Id.; see also Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (affirming CIA’s
Renewed MSJ”); Pl.’s Notice of Non-Opposition to Defs.’ Renewed Mot. for Summ. J., ECF
No. [29] (“Pl.’s Notice of Non-Opposition”).
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use of the “neither confirm nor deny” response to a FOIA request for records concerning CIA’s
reported contacts with the media regarding Howard Hughes’ ship, the “Hughes Glomar
Explorer”). Plaintiff appealed the CIA’s Glomar response in a letter dated April 8, 2010, and the
CIA’s Agency Release Panel denied the appeal on June 27, 2011. Lutz Decl. ¶¶ 11, 13.
On March 24, 2011, Plaintiff sent a second request to the CIA under the FOIA and the
Privacy Act, requesting “all records about [Plaintiff] and [Plaintiff’s] father indexed to
[Plaintiff’s] or [Plaintiff’s] deceased father’s name.” Id. ¶ 14. Defendant CIA separated the
requests pertaining to each individual and assigned the request for information pertaining to the
Plaintiff as Request No. P-2011-00460. Id. ¶ 15. The CIA’s search for records that might reflect
an open Agency affiliation or otherwise acknowledge Agency affiliation existing through March
30, 2011 yielded no responsive records. Id. The CIA also asserted a Glomar response regarding
any records that might “reveal a classified connection to the CIA.” Id. Plaintiff appealed the
adequacy of Defendant CIA’s search and its Glomar response on May 12, 2011, and the CIA
accepted this appeal on August 19, 2010. Id. ¶¶ 16, 20. In response to Plaintiff’s appeal, the
CIA searched its repository of records containing information about FOIA requests (CIA-14) and
searched for any responsive records relating to the Plaintiff’s FOIA requests predating March 30,
2011 – the date the CIA received and accepted Plaintiff’s appeal. Id. ¶¶ 81-85.
Because the part of Plaintiff’s second FOIA request to Defendant CIA requesting
information pertaining to Harold W. Whitaker was duplicative of the request in No. F-2010-
00611, it was incorporated into the processing of that earlier request, which was on appeal at the
time. Id. ¶ 16.
2. Department of State
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On January 3, 2008, Plaintiff submitted a FOIA and Privacy Act request to the
Department of State, seeking “any and all investigative/travel records on file” relating to a
“[m]issing airplane investigation report resulting from 10.03.80 flight gone missing over Spain
with US citizen/pilot Harold William Whitaker and one other co-pilot.” See Compl. ¶10; Defs.’
MSJ, Ex. E (Declaration of Sheryl L. Winter, Director of the Office of Information Programs and
Services of the United States Department of State) (“Walter Decl.”) ¶ 4. The request was
assigned Case Control Number 200800250. Id. ¶ 5. The Office of Information Programs and
Services (“IPS”) conducted a two-part search of its Central Foreign Policy records, resulting in
the retrieval of 19 responsive documents for the first part, and two responsive documents for the
second part. Id. ¶¶ 8-9. The first group of documents was released in full on June 22, 2009, and
the second group was released in full on August 5, 2009. Id.
On July 31, 2008, Plaintiff submitted another FOIA and Privacy Act request to the
Department of State seeking records related to:
Harold William Whitaker . . . Including travel, visa, special requests, federal
benefits, piloting or travel in aircraft, DISAPPEARANCE in DC-3 Aricraft [sic]
over Spain on 3 October 1980, search, coordination with European governments
in search, correspondence with Adelynn Hiller Whitaker (wife who is since
deceased) issuance of a Certificate of Death, Insurance, enduring notification of
aircraft wreckage requests, etc.
Compl. ¶ 11; Walter Decl. ¶ 10. This request was assigned Case Control Number 200904782.
Walter Decl. ¶ 11. The IPS searched the Central Foreign Policy Records and Office of Passport
Services for records responsive to this request. The Central Foreign Policy Records search
yielded the 19 documents already disclosed in the first part of the search from Case Number
200800250, while the Office of Passport Services search yielded no responsive documents. Id.
¶¶ 13, 16.
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On April 29, 2011, Plaintiff submitted a third FOIA and Privacy Act request to the
Department of State, seeking records related to the Department’s administrative processing of all
his previous FOIA requests. Compl. ¶ 18; Walter Decl. ¶ 17. This request was assigned Case
Control Number 201103392. Walter Decl. ¶ 18.
On January 20, 2012, Plaintiff submitted another FOIA and Privacy Act request to the
Department of State, seeking “all records which were classified as ‘non-responsive’ or
‘irrelevant’” in processing Request No. 200904872. Compl. ¶ 25; Walter Decl. ¶ 20. This
request was assigned FOIA Case Control Number F-2012-21285. Walter Decl. ¶ 21. The IPS
reviewed 10 documents responsive to this request, withholding two, releasing seven, and
referring the remaining documents to another agency, from which it originated. Id. ¶ 22.
Additionally, IPS conducted supplemental searches for responsive documents, which uncovered
three documents that were released in part to Plaintiff. Id.; see also Defs.’ MSJ, Ex. F
(Declaration of Naomi J. Ludan, FOIA and Privacy Act Disclosure Specialist for the U.S.
European Command) (“Ludan Decl.”) ¶ 4.
B. Procedural History
On February 27, 2012, Plaintiff filed suit in this Court raising a variety of objections to
the processing of his FOIA and Privacy Act requests by the Defendants. See generally Compl.
Defendants subsequently filed their [5] Motion for Summary Judgment seeking to dismiss this
case in its entirety. By Order and Memorandum Opinion issued March 10, 2014, the Court
granted in part and denied in part this motion. See Order, ECF No. [24]; Mem. Op., ECF No.
[25]. See also Whitaker v. CIA, No. 12-316, --- F.Supp.2d ---, 2014 WL 914603 (D.D.C. Mar.
10, 2014). As relevant here, the Court denied the motion without prejudice in three respects.
First, the Court found insufficient Defendant CIA’s invocation of FOIA Exemption (b)(3)
pursuant to the CIA Act of 1949. Whitaker, 2014 WL 914603, at *5-7. Second, the Court found
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that to the extent the CIA was withholding FOIA processing material pursuant to Exemption
(b)(3) on the basis that these materials were themselves “intelligence sources and methods”
within the meaning of the National Security Act of 1947, the Agency was applying this statute
too broadly. Id. at *7-9. Third, the Court concluded that Defendant State Department was not
entitled to summary judgment on the issue of the adequacy of its search because it had failed to
search for records regarding Maj. Lawrence Eckmann in response to Plaintiff’s FOIA requests.
Id. at *13-15.
In response to these rulings, Defendants CIA and State Department have filed the present
[28] Renewed Motion for Summary Judgment, in which Defendants represent that they have met
the requirements set out in the Court’s previous Order and Memorandum Opinion. In response,
Plaintiff filed a [29] Notice of Non-Opposition to Defendants’ Renewed Motion for Summary
Judgment, indicating that, while he does not concede the validity of Defendants’ legal
arguments, he has elected not to contest Defendants’ motion. Accordingly, Defendants’ motion
is ripe for review.
II. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). Congress remained sensitive to the need to achieve balance between these
objectives and the potential that “legitimate governmental and private interests could be harmed
by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that
end, FOIA “requires federal agencies to make Government records available to the public,
subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, --- U.S. -
---, 131 S. Ct. 1259, 1261-62 (2011). Ultimately, “disclosure, not secrecy, is the dominant
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objective of the Act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly
made exclusive, and must be narrowly construed.” Milner, 131 S. Ct. at 1262 (citations omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
the agency has sustained its burden of demonstrating that the documents requested . . . are
exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d
1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its
response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden
by means of affidavits, but only if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Multi Ag. Media, 515 F.3d at 1227 (citation
omitted). “If an agency’s affidavit describes the justifications for withholding the information
with specific detail, demonstrates that the information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in the record or by evidence of the
agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am.
Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations
omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical
relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of
State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when
the pleadings, the discovery materials on file, and any affidavits or declarations “show[ ] that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
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An agency also has the burden of detailing what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document. Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any
nonexempt information that is reasonably segregable from the requested records must be
disclosed. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition,
district courts are obligated to consider segregability issues sua sponte even when the parties
have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv.,
177 F.3d 1022, 1028 (D.C. Cir. 1999).
Defendants’ present motion for summary judgment is unopposed. However, the Court
notes that this is not sufficient by itself to grant the motion. See Alexander v. FBI, 691
F. Supp. 2d 182, 193 (D.D.C. 2010) (“[E]ven where a summary judgment motion is unopposed, it
is only properly granted when the movant has met its burden.”). Accordingly, the Court will
independently evaluate Defendants’ motion, remaining cognizant of the fact that “the motion
may, and should, be granted so long as whatever is before the district court demonstrates that the
standard for the entry of summary judgment . . . is satisfied.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
III. DISCUSSION
A. CIA
The remaining challenges to the CIA’s response to Plaintiff’s FOIA and Privacy Act
requests involve FOIA Exemption (b)(3). FOIA Exemption (b)(3) shields information
“specifically exempted from disclosure by statute . . . if that statute” either (1) “requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue,” or
(2) “establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). Here, the CIA has invoked two statutes – the CIA Act of 1949
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and the National Security Act of 1947 – in withholding documents pursuant to Exemption (b)(3).
Lutz Decl. ¶¶ 40-42. In its previous Order and Memorandum Opinion, the Court found that the
CIA appeared to be too broadly applying both of these statutes in withholding material from
Plaintiff. Whitaker, 2014 WL 914603, at *5-9. In Defendants’ present motion, the CIA has
clarified the basis for withholding under each of these statutes and requests that the Court grant
summary judgment in its favor.
a. The CIA Act
Section 6 of the CIA Act states that “the Agency shall be exempted from the provisions
of . . . any other law which require the publication or disclosure of the organization, functions,
names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. §
3507. In its initial motion for summary judgment, the CIA invoked this provision as grounds for
withholding pursuant to Exemption (b)(3), asserting that disclosure of certain information would
impermissibly reveal the “functions” of the CIA. See Lutz Decl. ¶¶ 88, 92. The Court rejected
this reasoning, agreeing with Plaintiff and other courts of this district that the CIA may not use
the CIA Act to withhold all information related to the “functions” of the Agency. Whitaker,
2014 WL 914603, at *5-7. See also Sack v. CIA, No. 12-244, --- F.Supp.2d ---, 2014 WL
3375569, at *10 (D.D.C. July 10, 2014); National Security Counselors v. CIA, 960 F. Supp. 2d
101, 174-85 (D.D.C. 2013). Rather, the use of the word “functions” is limited by the statutory
phrase “of personnel employed by the Agency.” Therefore, in light of the fact that the CIA had
too broadly applied the CIA Act to withhold information pursuant to Exemption (b)(3), the Court
ordered the CIA to either (a) disclose any otherwise non-exempt information to Plaintiff, or (b)
along with any subsequent renewed motion for summary judgment, file a more sufficient
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declaration and Vaughn index justifying the actual relationship between the withheld information
and personnel functions of the CIA. Whitaker, 2014 WL 914603, at *7.
In Defendants’ present filing, the CIA has met the requirements of this Court’s previous
Order and Memorandum Opinion. A Supplemental Declaration from Martha Lutz, Chief of the
Litigation Support Unit of the Central Intelligence Agency, attached to Defendants’ motion,
states that “[t]he CIA Act has been invoked to protect the names and other information that
would identify CIA personnel, such as their initials, email addresses, telephone numbers, and
office locations.” Defs.’ Renewed MSJ, Ex. 1 (“Supplemental Declaration of Martha M. Lutz,
Chief of the Litigation Support Unit of the Central Intelligence Agency”) (“Second Suppl. Lutz
Decl.”) ¶ 5. 2 This declaration further states that “[t]his information clearly falls within the ambit
of the statute because it would directly or indirectly reveal the identities of Agency personnel.”
Id. This Court has previously observed that “‘the names of its employees, personal identifiers,
official titles, file numbers, and internal organizational data’ would all appear to be information
relating to CIA personnel that could properly be withheld under the statute.” Whitaker, 2014
WL 914603, at *6 (quoting Schoenman v. FBI, 841 F. Supp. 2d 69, 84 (D.D.C. 2012)).
Furthermore, Plaintiff has provided no argument that these materials do not relate to “the
organization, functions, names, official titles, salaries, or numbers of personnel employed by the
Agency.” 50 U.S.C. § 3507. Accordingly, the Court concludes that the CIA has properly
applied the CIA Act in response to the Court’s previous Order, and summary judgment on this
issue is appropriate.
2
This supplemental declaration from Martha Lutz differs from the supplemental Lutz
declaration referenced in the Court’s previous Memorandum Opinion. See Defs.’ Reply, Ex. 1
(Supplemental Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, Central
Intelligence Agency) (“Suppl. Lutz Decl.”). To distinguish between these two filings, the Court
refers to the more recent supplemental declaration as the “Second Suppl. Lutz Decl.”
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b. The National Security Act
The National Security Act of 1947 vests the Director of National Intelligence with the
authority to protect “intelligence sources and methods.” 50 U.S.C. § 3024. This provision
authorizes withholding under Exemption (b)(3). However, in its previous Order and
Memorandum Opinion, the Court concluded that to the extent that CIA was arguing that its
processing materials for Plaintiff’s FOIA and Privacy Act requests constitute “intelligence
sources and methods” covered by the statute, it was applying the statute too broadly. Whitaker,
2014 WL 914603, at *7-9. To the extent that the CIA was asserting that the FOIA processing
materials themselves contain intelligence sources and methods, these materials could be
withheld. Id. at *8. Similarly, these materials could be withheld pursuant to the National
Security Act if they discuss whether to disclose information that would reveal intelligence
sources or methods. Id. Nevertheless, to the extent the CIA was asserting that the FOIA
processing materials are themselves “intelligence sources and methods,” the Court concluded
that the Agency went too far. Id. As the Court previously stated, “the FOIA processing
materials may contain intelligence sources and methods and thus may be withheld on the basis
that their disclosure would reveal these intelligence sources and methods. However, they may
not be withheld on the ipse dixit that they simply are intelligence sources and methods.” Id.
Accordingly, the Court ordered the CIA to either (a) disclose any otherwise non-exempt
information to Plaintiff, or (b) along with any subsequent renewed motion for summary
judgment, file a more sufficient declaration and Vaughn index which explained in greater detail
why all of the information withheld pertains to intelligence sources and methods. Id. at *9.
In the materials offered in support of its renewed motion for summary judgment, the CIA
“agrees that FOIA processing materials would not themselves constitute intelligence sources and
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methods.” Second Suppl. Lutz Decl. ¶ 7. However, the CIA now clarifies that “the CIA invoked
the National Security Act to protect specific portions of the processing materials at issue because
they discuss intelligence sources and methods, or contain information that would reveal these
intelligence sources and methods.” Id. The newly provided Lutz Declaration states (and the
accompanying Vaughn index corroborates) that revealing the contents of these FOIA processing
materials would function as an end-run around the CIA’s Glomar response, which the CIA used
in the first instance to protect intelligence sources and methods and which Plaintiff has not
contested. Id. ¶ 8 (“The [Glomar] response is designed to protect from disclosure, inter alia,
unacknowledged CIA sources, capabilities, authorities, interests, weaknesses, and resources.”).
As noted, the CIA previously issued a Glomar response, neither confirming nor denying whether
it was in possession of records responsive to Plaintiff’s FOIA requests. As the Lutz declaration
explains, “[r]eleasing the results of the[] searches [taken in response to Plaintiff’s requests]
would reveal whether or not the CIA possesses material responsive to plaintiff’s request. . . .
Using the FOIA processing documents to achieve confirmation of what cannot be uncovered by
the actual request would frustrate the purpose of the Glomar response.” Id. ¶ 9. “Indications that
responsive records exist would tend to reveal a classified association between the information
requested by the plaintiff and the Agency” while “a lack of responsive material would tend to
show that no such classification existed.” Id. Therefore, “the CIA invoked the National Security
Act to maintain the viability of the Glomar response and protect the intelligence sources and
methods underlying that response.” Id.
By providing this additional information, the CIA has met the requirements imposed by
the Court’s previous Memorandum Opinion and Order, as it has explained in greater detail why
all of the information withheld pertains to intelligence sources and methods. As the Supreme
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Court has made clear, the CIA has “very broad authority to protect all sources of intelligence
information from disclosure.” CIA v. Sims, 471 U.S. 159, 168-69 (1985). “Because of this
‘sweeping power’, courts are required to give ‘great deference’ to the CIA’s assertion that a
particular disclosure could reveal intelligence sources or methods.” Berman v. CIA, 501 F.3d
1136, 1140 (9th Cir. 2007) (citations omitted). “[I]t is the responsibility of the Director . . . , not
that of the judiciary, to weigh the variety of complex and subtle factors in determining whether
disclosure of information may lead to an unacceptable risk of compromising the Agency’s
intelligence-gathering process.” Sims, 471 U.S. at 180. See also Linder v. Dep’t of Defense, 133
F.3d 17, 25 (D.C. Cir. 1998). Here, with the newly provided materials, the CIA has stated that
the document processing materials either themselves discuss intelligence sources and methods or
contain information that would reveal intelligence sources and methods which the CIA has
sought to protect through its Glomar response. Second Suppl. Lutz Decl. ¶¶ 8-9. In light of the
“great deference” afforded the CIA pursuant to this provision, the Court concludes that this
material may be withheld pursuant to the National Security Act and Exemption (b)(3).
Accordingly, summary judgment is appropriate as to this issue.
B. State Department
In its previous Order and Memorandum Opinion, the Court concluded that the State
Department performed an inadequate search for responsive records in response to Plaintiff’s
FOIA requests. Whitaker, 2014 WL 914603, at *13-15. Specifically, the search was inadequate
because the State Department had not searched for records about Major Lawrence Eckmann, the
co-pilot of the plane containing Plaintiff’s father. The State Department now represents that it
has searched for records relating to Maj. Eckmann as requested by Plaintiff and released the one
document located in response to Plaintiff, thus curing the defects in its previous search. The
Court agrees and grants summary judgment on this issue.
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An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation omitted). “At summary
judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely to contain responsive materials (if
such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotations
and citation omitted). “The agency cannot limit its search to only one or more places if there are
additional sources ‘that are likely to turn up the information requested.’” Valencia-Lucena, 180
F.3d at 326 (citation omitted). Ultimately, the adequacy of a search is “determined not by the
fruits of the search, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted). See also Weisberg v. DOJ, 745
F.2d 1476, 1485 (D.C. Cir. 1984) (“[T]he issue to be resolved is not whether there might exist
any other documents possibly responsive to the request, but rather whether the search for those
documents was adequate.”) (emphasis in the original).
In response to the Court’s previous Order, the State Department searched for documents
mentioning Maj. Eckmann in all of its records systems reasonably likely to contain responsive
records during the relevant time period. Defs.’ Renewed MSJ, Ex. 2 (Decl. of John F. Hackett) ¶
4. These repositories include the Central Foreign Policy Records and the Office of Passport
Services, as well as the retired files of the Office of Overseas Citizens Services, the U.S.
Embassy in Madrid, the U.S. Consulate General in Barcelona, the U.S. Embassy in Bonn, and
the U.S. Consulate General in Stuttgart. Id. These searches resulted in the retrieval of one
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responsive document, which was released to Plaintiff in full. 3 Id. ¶ 11. For his part, Plaintiff
provides no argument as to the inadequacy of this search. Finding that the State Department has
remedied the previous defects in its search for records, the Court grants summary judgment as to
this issue.
3. Segregability
Finally, pursuant to its independent obligation to consider the issue of segregability, the
Court is satisfied from the CIA’s description of its review process that it has complied with its
segregability obligations. According to Defendants, the CIA evaluated the documents
potentially responsive to Plaintiff’s request and determined that any documents responsive to
Plaintiff’s requests were exempt from disclosure in their entirety. See Second Suppl. Lutz Decl.
¶ 11 (“I have conducted page-by-page, line-by-line review of all of the documents at issue in this
case and have determined that all reasonably segregable non-exempt information has been
produced.”). Again, as discussed, Plaintiff has raised no objection on this point. In addition,
segregability concerns are of no moment with respect to the State Department, as the State
Department released the one document located through its additional searches in its entirety.
Accordingly, the Court does not find segregability concerns sufficient to deny summary
judgment to Defendants.
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The State Department notes that this document is a “near-identical duplicate of [a]
document . . . released to Plaintiff by letter dated August 5, 2009 in response to request number
200800250.” Id. ¶ 11.
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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ [28] Renewed Motion for
Summary Judgment. Accordingly, this action is DISMISSED WITH PREJUDICE. An
appropriate Order accompanies this Memorandum Opinion.
Dated: August 15, 2014
____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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