Hall v. Central Intelligence Agency , 881 F. Supp. 2d 38 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROGER HALL, et al.,
Plaintiffs,
v. Civil Case No. 04-00814 (RCL)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
Plaintiffs Roger Hall (“Hall”), Studies Solutions Results, Inc., and Accuracy in Media
(“AIM”) filed this action against defendant Central Intelligence Agency (“CIA” or “Agency”)
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking records
concerning prisoners of war or soldiers missing in action from the Vietnam War era. Before the
Court is the CIA’s motion for summary judgment and plaintiffs’ cross-motion for summary
judgment, as well as plaintiffs’ request for discovery and in camera review. Upon consideration
of Judge Kennedy’s November 12, 2009 Memorandum Opinion and Order [137]; CIA’s
Supplemental Response pursuant to the Court’s 2009 Memorandum Opinion and Order [148];
AIM [163] and Hall’s [166] responses to defendant’s supplemental response to the Court’s 2009
Order; CIA’s reply to plaintiffs’ responses to CIA’s supplemental response [169]; CIA’s
supplemental items 4 and 5 response to the Court’s November 12, 2009 Memorandum Opinion
and Order [177]; AIM’s Response to CIA’s supplemental responses to the Court’s memorandum
Opinion and Order [181]; Memorandum of points and authorities in support of plaintiffs’
supplemental memorandum regarding this Courts November 12, 2009 Order and in opposition to
defendant’s supplemental items 4 and 5 response to Court’s November 12, 2009 Order [182];
defendant’s response in support of its May 15, 2012, filing and in opposition to plaintiffs’
requests for discovery and in camera review [184]; the applicable law; and the entire record of
this case; the Court will GRANT IN PART and DENY IN PART the CIA’s Motion for summary
judgment; GRANT IN PART and DENY IN PART plaintiffs’ Cross-Motion for summary
judgment, and DENY plaintiffs’ Motions for in camera review and discovery. The Court will
explain its reasoning in the analysis below.
I. PROCEDURAL HISTORY
In February 2003, Hall made a FOIA request to the CIA on behalf of himself and AIM,
seeking assorted records pertaining to POW/MIAs from the Vietnam War era. Hall Compl. ¶ 6.
Having received no substantive response, Hall and AIM filed this action in May, 2004. Hall v.
CIA, 668 F. Supp. 2d 172, 176 (D.D.C. 2009). The procedural history of this case, leading up to
November 12, 2009, is told comprehensively in Judge Kennedy’s 2009 Order. Id. at 175–78.
Though the 2009 Order narrowed the case issues, and though the CIA has since released “several
thousand pages of records,” many issues remain. Hall’s Resp. [166] at 1.
Judge Kennedy’s 2009 Order held that the CIA must complete the following to be
awarded summary judgment: (1) provide plaintiffs with all non-exempt records created by the
CIA which were provided to the Senate Select Committee, id. at 179–80; (2) search for the
approximately 1,700 names in the Item 5 request and turn over all non-exempt documents, or
explain why it cannot complete the search without additional biographical information, id. at
180–81; (3) search its system for responsive documents relating to searches recently conducted
for other federal agencies, as requested in Item 7, or explain to the Court why it cannot do so, id.2
at 181; (4) take affirmative steps to ensure that its referrals and coordination documents are being
processed by the other agencies, id. at 182; (5) provide supplemental declarations describing its
search methods, including terms, databases, and other relevant information that will allow the
Court to evaluate whether the searches were adequate, id. at 184; (6) either search other divisions
for the requested records, in relation to Item 6, or explain to the Court why those divisions are
unlikely to have responsive documents, id. at 186; (7) submit an adequate Vaughn index for the
withholdings it disclosed in November 2005; id. at 187, (8) show an exemption for the withheld
documents claimed under exception 1 that are under 25 years old, id. at 188–89; (9) provide
further detail to the Court regarding the documents withheld under exception 2, or provide the
documents to Hall, id. at 190; (10) provide Hall with the seven 1 June 2004 documents claimed
exempt by the CIA under deliberative process, or provide the Court with more details on the
reasons for non-disclosure, id. at 192; (11) disclose records withheld pursuant to the attorney-
client privilege, or indicate why withholding is proper as to each document for which it relies on
the privilege; id., (12) disclose the information withheld under exception 6, or provide the Court
with more detail on why the exception applies; id. at 193; and (13) specify in detail which
portions of the documents are disclosable and which are allegedly exempt in regard to the
segregability of withheld documents, id at 194.
II. STATUTORY FRAMEWORK
Under FOIA, federal government agencies are required to release records to the public
upon request. 5 U.S.C. § 552(a). FOIA defines “record” as “any information that would be an
agency record subject to the requirements of [FOIA] when maintained by an agency in any
format, including an electronic format,” including information “that is maintained for an agency
1
The documents are numbers 1100665, 1100667, 1100668, 1100669, 1100670, 1100671, and 1479603. Hall, 668
F. Supp. 2d at 191 n.18, 19. The CIA was granted summary judgment on all other deliberative process claims. Id.
at 192.
3
by an entity under Government contract, for the purposes of records management.” 5 U.S.C.
§ 552(f)(2). A FOIA requester may appeal an agency’s failure to disclose requested records. 5
U.S.C. § 552(a)(6). The requester may bring suit in federal court if the request for appeal is
denied. 5 U.S.C. § 552(a)(6)(C)(i). A district court has jurisdiction to order the production of
any records that have been improperly denied to the requester. 5 U.S.C. § 552(a)(4)(B).
III. LEGAL STANDARD
Summary judgment is appropriate when the moving party demonstrates that “there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists,
the trier of fact must view all facts, and all reasonable inferences drawn therefrom, in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986). In order to defeat summary judgment, a factual dispute must be capable of
affecting the substantive outcome of the case and be supported by sufficient admissible evidence
that a reasonable trier of fact could find for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986).
An agency may be entitled to summary judgment in a FOIA case if it demonstrates that
no material facts are in dispute, it has conducted an adequate search for responsive records, and
each responsive record that it has located has either been produced to the plaintiff or is exempt
from disclosure. See Weisberg v. DOJ, 705 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden,
a defendant may rely on reasonably detailed and non-conclusory declarations. See McGehee v.
CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983).
In a FOIA case, the court determines de novo whether an agency properly withheld
information under a claimed exemption. Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d
4
242, 251 (D.C. Cir. 1977). “The underlying facts are viewed in the light most favorable to the
[FOIA] requester,” Weisberg, 705 F.2d at 1350, and the exemptions must be narrowly construed.
FBI v. Abramson, 456 U.S. 615, 630 (1982). However, courts generally defer to agency
expertise in national security matters. See, e.g., Taylor v. Dep’t of the Army, 684 F.2d 99, 109
(D.C. Cir. 1982) (according “utmost deference” to classification affidavits); Krikorian v. Dep’t of
State, 984 F.2d 461, 464–65 (D.C. Cir. 1993) (acknowledging “unique insights” of executive
agencies responsible for national defense and foreign relations). While the agency must not
withhold information in bad faith, Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981), the affidavits submitted by the agency to demonstrate the adequacy of its response are
presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.
1981).
IV. ANALYSIS
A. CIA’s Refusal to Respond to Certain Portions of Plaintiffs’ Requests
i. Item 5
Hall’s Item 5 request 2 asked the CIA to provide responsive documents on 1,711 names,
each of whom is an alleged Vietnam War Era POW/MIA. Hall’s Resp. [166] at 4. The names
come from “an official [Primary Next-of-Kin] list drawn up by the Department of Defense.” Id.
at 3. In the 2009 Order, Judge Kennedy held that the CIA must conduct the search for the 1,711
names and release the non-exempt records to the plaintiffs, or explain to the court why the CIA
would be unable to distinguish responsive records from the search. Hall, 668 F. Supp. 2d at179–80. The CIA did not originally identify legal authority for denying the Item 5 search
2
Hall seeks “[r]ecords relating to [forty-four] individuals who allegedly are Vietnam era POW/MIAs, and whose
next-of-kin have provided privacy waivers to Roger Hall . . . and those persons who are on the Prisoner of
War/Missing Personnel Office’s list of persons whose primary next-of-kin (PNOK) have authorized the release of
information concerning them.” February 2003 Letter at 2.
5
request, Id. at 180, but now claims that a search for all 1,711 names without additional
identifying information would be unduly burdensome. CIA’s Reply [169] at 5–7.
In 2010, the CIA agreed to search the CIA Automatic Declassification and Release
Environment (“CADRE”) system for 31 3 of the 1,711 names, as the 31 names came with
additional identifying information to aid in responsiveness determinations. CIA’s Supp. Resp.
[148] at 13–15. Still at issue in regard to the Item 5 request is (1) whether the CIA must search
for all 1,711 names provided by Hall; (2) in which systems the CIA must search for those names;
and (3) whether the CIA properly redacted and withheld Item 5 documents under FOIA
exemptions. Issues 1 and 2 are addressed here, while issue 3 will be addressed with the other
exemption claims later in this Opinion.
1. Burdensomeness of the Search
The CIA claims that its CADRE system and archived records are the two systems “most
likely4” to contain records responsive to plaintiffs’ Item 5 FOIA request. Cole Decl. ¶ 71.
However, the CIA claims that searching the CADRE system for anything other than the 34
names that it has been given “identifying information” for would be an “unreasonable burden.”
Id. ¶ 75. The CIA also argues that searching its archived records for any names–even those
names for which it has been supplied additional identifying information–would be unduly
burdensome. Id. ¶ 73. This Court disagrees, and therefore denies the CIA’s motion for summary
judgment, and grants plaintiffs’ motion for summary judgment in regard to the Item 5 systems
search.
3
Since the 2009 Order, Hall has provided additional information for three of the names–Matthes, Fanning, and
Scharf–all of which the CIA has agreed to search the CADRE system for, though the CIA claims it does this absent
a legal obligation. Supp. Culver Decl. ¶ 51. Plaintiffs refer to a “Mathes”, while the CIA refers to a “Matthes,”
neither acknowledging a spelling error by the other side. Id., Hall’s Memo. of Pts and Auth. [182] at 3. Therefore,
the Court is unsure which is the correct spelling.
4
The issue of the CIA searching only those systems “most likely” to contain Item 5 responsive documents will be
addressed in section IV(B)(4) of this Opinion.
6
a. CADRE System Search
CADRE stores information processed for the CIA’s information release programs. Id. at
75. A search conducted in CADRE for the 1,711 names provided by plaintiffs identified almost
140,000 potentially responsive documents. Id. The CIA claims it would be unduly burdensome
to make responsiveness determinations based on “name alone,” and therefore only agreed to
process the search results for 31 of the 1,711 names. 5 Id. The Court finds the CIA’s argument
unpersuasive.
First, as argued by plaintiffs, the CIA is not asked to determine responsiveness on name
alone–if the record is regarding an individual as a POW or MIA, it is responsive. AIM’s Resp.
[163] at 3. Therefore, the CIA’s argument that “it is extremely difficult or impossible to
determine responsiveness based on name alone” carries little weight. Cole Decl. ¶ 69. Also, the
CIA does not state that responsiveness would be impossible for all documents, just that it may be
impossible to determine for some documents. That would mean that some responsive records,
perhaps even a vast majority, could be determined to be responsive. The CIA offers no estimates
of the percentage of documents for which responsiveness would be “impossible.”
Second, as plaintiffs mention, the CIA gives no estimate of how long it would take to
review the 140,000 folders. Hall’s Resp. [166] at 7. The CIA has remained silent on the issue of
estimating the man-hours involved, even after plaintiffs raised the issue. This Court will not find
a search unduly burdensome on conclusory statements alone. Therefore, the CIA must search its
CADRE system for all 1,711 names, and produce all responsive non-exempt documents to
plaintiffs.
b. Archived Records Search
5
Thirty-one names included information such as birthdate and/or social security numbers. Hall later supplied
additional information for 3 more names, which the CIA agreed to search for, bringing the total to 34.
7
The CIA’s archived records are available only in hard copy and are searchable only by an
electronic index. Cole Decl. ¶ 71–72. A search of this electronic index found that 16,423 hard-
copy file folders in the archived records might contain responsive Item 5 records. Id. ¶ 73. The
CIA argues that “[t]o continue the search and process the results for the 1,711 names in the
CIA’s archived records would be unduly burdensome.” Id. However, this Court cannot find
sufficient justification from the CIA to preclude the search.
The only support the CIA can conjure for its burdensome argument is that “CIA
personnel would have to pull the relevant boxes, unseal the boxes, locate the correct file folders
identified by the electronic index, then manually review all of the documents in each folder
merely to determine whether each archived document would be responsive to plaintiffs’
request.” Id ¶ 74. Or to put it another way, someone would have to grab a box, open it, grasp
the identified file folder, and look at it. Despite the CIA’s detailed tutorial on how to get a file
out of a box, again it fails to provide the Court with an estimate of how many man-hours are
necessary to fulfill the search. 6 The Court will not find a search unduly burdensome simply
because of the level of description shown and the number of steps used to describe looking into a
box. Therefore, the Court denies summary judgment to the CIA in regard to the adequacy of its
Item 5 search, and grants summary judgment to plaintiffs’ in regard to the Item 5 systems search.
2. Item 7
Plaintiffs’ Item 7 requested “[a]ll records on or pertaining to any search conducted
regarding any other requests for records pertaining to Vietnam War POW/MIAs, including any
search for such records conducted in response to any request by any congressional committee or
6
In support of the search being unduly burdensome, the CIA cites a D.C. Circuit Court case, affirming that a search
requiring a dozen people working full-time for over a year to be unduly burdensome. CIA’s Reply [169] at 6 (citing
Int’l Counsel Bureau v. Dep’t of Defense, 723 F. Supp. 2d 54, 59 (D.D.C. 2010)).The CIA has offered no such
estimates here for the Court.
8
executive branch agency.” Pl.s’ Compl. [1] at 4. The 2009 Order found that “based on the
parties’ representations, the Court will treat item 7 as excluding records of searches performed in
response to previous FOIA requests.” Hall, 668 F. Supp. 2d at 181. The Court stated that it
could not grant summary judgment until the CIA performed the Item 7 search or explained to the
Court why such a search was not possible. Id.The CIA searched its CADRE system for documents requested by other federal agencies
that concerned POW/MIAs. Nelson Decl. ¶ 39. The CIA searched for “EB case type” files, as
that was “the only part of the CADRE database likely to contain any information concerning
search requests from other federal agencies . . . .” Id. The search, which used numerous
manifestations of POW and MIA terms, returned no responsive documents. Id. ¶ 40.
Plaintiffs argue that the CIA “misinterpreted the Court’s Order,” in regard to Item 7, and
that the search was inadequate because it did not search for records produced “in response to any
request by any congressional committee” as was originally requested. AIM Response at 7–8.
The CIA argues that this issue was raised by AIM for the first time in the April 18, 2011
response, and that AIM has thus waived that issue. CIA’s Reply [169] at 10. This Court
disagrees.
There seems to be some confusion as to what plaintiffs’ Item 7 request entails. In the
plaintiffs’ FOIA request and Complaint, plaintiffs requested “All records on or pertaining to any
search . . . for records pertaining to Vietnam War POW/MIAs, including . . . in response to any
request by any congressional committee . . . .” AIM FOIA Request [114-1] at 2; plaintiffs’
Complaint [1] at 4 (emphasis added). But, the Nelson Declaration states: “In Item 7, plaintiffs
initially requested ‘all records pertaining to any search ever conducted by the Agency, at any
time and for any reason, for records concerning Vietnam War POW/MIAs.’” Nelson Decl. ¶ 35
9
(citing Hall, 668 F. Supp. 2d at 181). This language differs from the complaint and original
FOIA request language cited above, which also asked for the congressional committee requests.
The CIA appears to have used the language from the 2009 Order–which appears to misquote
Hall’s 2003 letter request concerning Item 7–to excuse them from the full extent of plaintiffs’
FOIA request. The CIA then argues the issue was brought up for the first time in AIM’s
response, even though it was in the FOIA request and the Complaint.
The CIA has made no claims that it is unable to conduct the search in question.
Therefore, summary judgment cannot be granted until it searches for all records on or pertaining
to any search conducted regarding any congressional committee requests pertaining to Vietnam
War POW/MIAs, in all systems likely to contain responsive documents, and provides plaintiffs
with all non-exempt records and photographs. Therefore, the CIA’s motion for summary
judgment in regard to Item 7 is denied, and the plaintiffs’ cross-motion for summary judgment as
to the Item 7 congressional committee request search is granted.
3. Referral/Coordination Documents
Referral documents are documents “that originated from a third agency.” Nelson Decl. at
13 n.9. When this is the case, “[t]he agency . . . refers the document to the originating agency for
a direct response to the requester.” Id. Coordination documents involve CIA-originated
materials that contain “information, the disclosure of which, would affect the interests or
activities of another federal agency.” Id. When this is the case, “[t]he Agency . . . contacts the
third-party agency in order to obtain guidance on whether to release or withhold the information”
and the CIA responds to the FOIA requestor directly.
An agency “must take responsibility for processing the [FOIA] request” even if the
documents originated elsewhere. McGehee, 697 F.2d at 1110. Referrals are appropriate, but a
10
referral system constitutes withholding “if its net effect is significantly to impair the requester’s
ability to obtain the records or significantly to increase the amount of time he must wait to obtain
them.” Id. The withholding is “‘improper’ unless the agency can offer a reasonable explanation
for its procedure.” Id.a. Item 3
Plaintiffs requested the Item 3 records in February 2003. Hall, 668 F. Supp. 2d at 182.
“The CIA released the results of the search it conducted in response to that request in September
2007.” Id. The search found responsive documents “that originated from a third agency” which
were referred to “unnamed agencies” for review. At the time of the 2009 Order, plaintiffs had
not yet received those documents. Hall, 668 F. Supp. 2d at 182. The Court held that “the CIA is
responsible for responding to [the Item 3] request and that it must take affirmative steps to ensure
that its referrals are being processed, which it should describe in its supplemental filing.” Id.The CIA updated the Court on the referral process in its August 23, 2010 Supplemental
Response. CIA’s Supp. Resp. [148] at 17–20. The CIA stated that Item 3 referral documents
concerned 6 different agencies, and each agency was sent a May 24, 2010, registered letter
requesting that the originating agencies process the referral documents and respond to plaintiffs
as soon as possible. Id. at 18–19. The CIA followed up with those agencies in June and July of
2010, and as of August 23, 2010, the CIA claimed that “[p]laintiffs have received final responses
from all six originating agencies to which the CIA sent referral documents.” Id. Plaintiffs have
not disputed that all Item 3 referral documents have been received, so the Court finds that, here,
the CIA has met its burden.
The CIA also had 13 coordination documents responsive to Item 3, concerning 11
agencies. Id. “[O]n August 3, 2010, two coordination documents were released to plaintiffs in
11
full and eleven were [released in part].” Id. The withheld information invoked exemptions 1, 3,
and 6, with supporting declarations from the coordinating agencies. Id. at 20. The
appropriateness of the exemption claims will be discussed in the exemption portion of this
Opinion, but it is found here that the Agency fulfilled its burden as to the coordination of these
documents, and therefore, the CIA is granted summary judgment in regard to the following
coordination documents.
b. Item 4
Of the 1,452 Item 4 responsive documents, the CIA claims that 167 contained
information that required coordination with other agencies. Culver Supp. Decl. ¶ 7. Of the 167
coordination documents, two have been released in whole, and 165 released in part. Id. The
CIA released the Item 4 coordination documents to plaintiffs by letter on November 30, 2011.
Id. Again, the appropriateness of the exemption claims here will be discussed in the exemption
portion of this Opinion, but it is found here that the Agency fulfilled its burden as to the
coordination of these documents.
c. Item 5
The CIA states that on January 21, 2011, nineteen Item 5 CIA-originated documents were
sent to appropriate agencies 7, while non-CIA-originated documents were referred for direct
response to plaintiffs. Cole Supp. Decl. ¶ 5. The CIA released the nineteen Item 5 coordination
documents, in part, to plaintiffs by letter on November 30, 2011. Culver Supp. Decl. ¶ 7. The
appropriateness of the exemption claims here will be discussed in the exemption portion of this
opinion.
7
These agencies are the Defense Intelligence Agency (“DIA”), the National Security Council (“NSC”), National
Security Agency (“NSA”), Department of Defense (“DOD”), and Department of State (“DOS”).” Cole Supp. Decl.
¶ 5.
12
Of the Item 5 referral documents, 48 originated with DOD, three with NSA, and 20 with
DIA. Id. ¶ 54. The CIA sent each agency a notice of the referral documents on January 21, 2011.
Id. “In September 2011, the CIA followed up with the DoD and NSA about the Item 5 referral
documents.” Id. On September 27, 2011, the NSA stated that it hoped to have review complete
by the end of the month. Id. ¶ 55. On November 29, 2011, DOD stated that it anticipated
finalizing the DOD and DIA documents “within the next 20–30 days.” Id. Hall and AIM appear
to have received these documents because they have not stated otherwise, therefore the Court
assumes they have received these Item 5 referral documents. However, there is still a remaining
Item 5 referral issue.
The CIA conducted a supplemental Item 5 search for “Capt. Peter Richard Mathes,”
finding seven responsive documents, all originating with other agencies. Culver Supp. Decl. ¶
52. On September 21, 2011, “the CIA sent the originating agencies a notice of the referral
documents that need to be processed.” Id. Hall claims he has still not heard anything from these
“unnamed agencies.” Hall’s Mem. and Pts and Auth. [182] at 4. The CIA responds that “[i]f
these agencies have failed to provide a timely response to plaintiff, it is up to plaintiffs to take
whatever action they deem appropriate directly with those agencies.” CIA’s Resp. [184] at 5–6.
The CIA goes on to state that it “has fulfilled its obligation and has no power or control over the
actions of another federal agency.” Id. at 6. Here, the CIA’s response is not only baffling, but
the failure to produce the documents amounts to an improper withholding.
The CIA apparently chooses to ignore Judge Kennedy’s 2009 Order, where it was made
clear that an agency “‘must take responsibility for processing the [FOIA] request’ even if the
documents originated elsewhere.” Hall, 668 F. Supp. 2d at 182 (citing McGehee, 697 F.2d at
1110). For the CIA to then tell this Court that “[i]f these agencies have failed to provide a timely
13
response to plaintiff, it is up to plaintiffs to take whatever action they deem appropriate directly
with those agencies,” may explain why this case has limped along for so many years. CIA’s
Resp. [184] at 5–6. Judge Kennedy’s Order even cited a case where an agency that took 11
months to produce referral documents was found to have “ignored its responsibilities under
FOIA.” Hall, 668 F. Supp. 2d at 182 (quoting Keys v. U.S. Dep’t of Homeland Sec., 570 F. Supp.
2d 59, 70 (D.D.C. 2008)).
It has been over 10 months since the CIA sent the referral letter, and the CIA has offered
no evidence that it has followed up with the “unnamed agencies” in regard to the referral
documents. Because the CIA is responsible for responsive records, even when those records
originated with other agencies, this Court holds that the CIA must take immediate affirmative
steps to be sure that each referral is being processed, which it shall describe in its supplemental
filing.
B. The Adequacy of the CIA’s Search
Review of the adequacy of an agency’s search for records responsive to a FOIA request
is based on “principles of reasonableness.” Weisberg, 745 F.2d at 1485. An agency is required
“to make a good faith effort to conduct a search for the requested records, using methods which
can reasonably be expected to produce the information requested.” Int’l Trade Overseas, Inc. v.
Agency for Int’l Dev., 688 F. Supp. 33, 36 (D.D.C 1988) (quoting Marrera v. U.S. Dep’t of
Justice, 622 F. Supp. 51, 54 (D.D.C 1985)). The 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.” Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir 1999) (quoting Oglesby, 920 F.2d at
68). An agency is not required to search all of its records systems if searches of particular
14
systems “are unlikely to produce any marginal return.” Campbell v. U.S. Dep’t of Justice, 164
F.3d 20, 28 (D.C. Cir. 1998) (citing Oglesby, 920 F.2d at 68).
1. Item 3
Plaintiff’s Item 3 seeks records
prepared by and/or assembled by the CIA between January 1, 1960 and December
31, 2002, relating to the status of any United States POWs or MIAs in Laos,
including but not limited to any reports, memoranda, letters, notes or other
documents prepared by Mr. Horgan or any other officer, agent or employee of the
CIA for the Joint Chiefs of Staff, the President, or any federal agency.
February 7, 2003 Letter [5-1] at 2.
The CIA provided responsive Item 3 documents on September 28, 2007, 8 but Judge Kennedy
held that the CIA did not provide enough information on the search to grant summary judgment,
stating that “[t]he CIA must provide a supplemental declaration describing its search method,
including search terms, databases searched, and other relevant information that will allow the
Court to evaluate whether the Agency’s search was adequate.” Hall, 668 F. Supp. 2d at 184.
National Clandestine Files (“NCS”) were not searched, because “all NCS records likely to be
responsive to plaintiffs’ FOIA request would be located in CIA operational files . . . .” Nelson
Decl. at 4 n.6. The CIA filed the Nelson Declaration in August 2010, which detailed who
conducted the Item 3 search, the databases searched, and the search terms used. Id. ¶ 5–26.
Plaintiffs’ argue that the Item 3 search was inadequate because the CIA only searched those
systems “most likely” to contain responsive documents. Hall’s Resp. [166] at 4 n.2. This Court
disagrees.
Plaintiffs are correct that an adequate FOIA search involves searching all record systems
“likely to produce responsive documents.” Oglesby 920 F.2d at 68. Plaintiffs also correctly
observe that the CIA states that the Item 3 search of the DIR offices was done in the systems
8
CIA’s Supp. Resp. [148] at 22–28.
15
“most likely” to contain responsive records. Nelson Decl. ¶ 9 (emphasis added). A search of the
systems “most likely” to contain responsive documents does not satisfy FOIA, because systems
that are not the “most likely” to contain documents may still be likely to contain responsive
documents. However, the CIA also states that the offices that were searched 9 “were the only
offices within the DIR likely to contain information responsive to Item 3 of Plaintiffs’ request.”
Id. This statement meets the test, and it does not contradict the previous assertion. Searching all
systems likely to contain responsive documents would also be a search of the systems “most
likely” to contain responsive documents. Because the CIA submitted declarations explaining in
reasonable detail the scope and method of the agency’s search, 10 and explained in adequate detail
that all systems likely to contain responsive records were searched, this Court finds the CIA’s
Item 3 search to be adequate. Therefore, the Court grants summary judgment to the CIA in
regard to the adequacy of its Item 3 search, and denies summary judgment to plaintiffs.
2. Item 4
In the 2009 Order, the Court held that the CIA must turn over all copies of non-exempt
CIA created records included with the Senate Select Committee documents on POW/MIA
Affairs that were withdrawn from the National Archives. Hall, 668 F. Supp. 2d at 179–80. The
Agency has since stated that it possesses 1,452 CIA-originated documents responsive to the
plaintiff’s Item 4 request. CIA’s Supp. Resp. [148] at 2. On August 20, 2010, the CIA provided
plaintiffs with 44 of the documents in full, 970 in part, and 271 were withheld in full. Id.Documents were withheld under FOIA exceptions 1, 3, and 6. Id. 3–12. The agency also found
9
The Nelson Declaration states that the CIA searched the Directors Action Center, National Intelligence Counsel,
Office of the Inspector General, Office of General Counsel, and the Office of Congressional Affairs. Nelson Decl.
¶ 9.
10
Judge Kennedy’s Order asked for information about the search, specifically asking that the CIA explain “whether
it used both ‘prisoner of war’ and ‘prisoners of War’ as search terms.” Hall, 668 F. Supp. 2d at 184 n.9. The Order
also asked whether the search was case sensitive. Id. The CIA has stated that searches would have “captured
records responsive to singular and plural versions of these search terms.” Nelson Decl. ¶ 10. The CIA also stated
that the searches were not case sensitive. Id.16
that 167 documents contained information that affected third-party federal agencies, and that the
CIA was working with those agencies to determine what releases would be appropriate. Id. at 2–
3. Hall claims that the CIA improperly redacted and withheld Item 4 documents, Hall’s Resp.
[166] at 19–26, that the Item 4 search was inadequate because subsequent searches were not
conducted using terms found in released Item 4 documents, id. at 8–16, 11 that referral documents
have not been provided, id. at 16–17, and that not all Item 4 documents were identified, id. at 19.
The adequacy of identification claims of Item 4 documents will be discussed here, while the
exemption claims, use of additional search terms, and referral documents, will be discussed
below in those relevant sections.
Hall argues that, though the CIA identified 1,472 documents responsive to Item 4, “1,766
documents had been forwarded to the Library of Congress and 574 documents had been denied
in their entirety.” Hall’s Resp. [166] at 19. Hall cites a November 9, 1993, letter from CIA
Director R. James Woolsey to the President for this information. Id. The CIA counters this by
stating that the letter refers to a document review effort “pursuant to Executive Order 12812, an
effort entirely distinct from the CIA’s review of the” Item 4 documents, thus making it
“irrelevant of Plaintiffs’ FOIA request.” CIA’s Reply [169] at 4. The Court finds the CIA’s
explanation credible, and plaintiffs have not responded to the CIA’s argument. Therefore, the
Court holds that the CIA has properly identified all relevant Item 4 documents and grants
summary judgment to the CIA in regard to the adequacy of its Item 4 search, and denies
summary judgment to plaintiffs.
3. Item 5
11
Hall does not specify that he is referring to Item 4 documents here, but just as the CIA states in its reply, the Court
also “presumes that these [inadequate search] references relate to Item 4 . . . .” CIA’s Reply [169] at 2 n.1. This is
because of Hall’s reference to the CIA’s recent release of thousands of pages of records, and the CIA produced the
vast majority of Item 4 records in August 2010. Id.
17
For a search to be adequate, an agency must search all record systems “likely to produce
responsive documents.” Oglesby 920 F.2d at 68. The CIA states that “[i]n conducting a search
for records on 1,711 individuals to be responsive to Item 5, the Agency’s Information Review
Officers determined that there are two records systems most likely to contain information
responsive to Plaintiffs’ Item 5 FOIA request: the CIA’s archived records . . . and the electronic
CIA Automatic Declassification and Release Environment (a.k.a. CADRE).” Cole Decl. ¶ 71.
(emphasis added). Again, only searching the databases “most likely” to contain responsive
documents does not satisfy FOIA, as it may preclude record systems that are less likely than
others to contain responsive documents, yet may still likely contain them.
The CIA argues in a reply that in regard to Item 5 it “did not limit its search to exclude
any additional databases likely to contain responsive information.” CIA’s Reply [169] at 9–10.
The CIA also states that it “made a good-faith effort to search all records systems reasonably
expected to produce the information requested.” Id. at 10. However, these statements were
lacking from the agency-supplied declarations. “To show reasonableness at the summary
judgment phase, an agency must set forth sufficient information in its affidavits for a court to
determine if the search was adequate.” Nation Magazine, Washington Bureau v. United States
Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995). Because the CIA’s affidavits stated that the
CIA searched the systems “most likely” to contain responsive documents, the Court concludes
that the CIA has only searched systems “most likely” to contain responsive documents, and did
not search all systems “likely to produce responsive documents.” Therefore, the Court denies the
defendant’s motion for summary judgment in respect to Item 5, grants summary judgment to
plaintiffs, and holds that the CIA must search for all 1,711 names in all systems that are likely to
produce responsive documents.
18
4. Item 6
Plaintiffs’ Item 6 requests “records pertaining to searches the CIA performed in response
to Hall’s 1994 and 1998 FOIA requests as well as to fee assessments connected to those
searches.” Hall, 668 F. Supp. 2d at 185. The CIA had searched only one record system for
documents, which plaintiffs challenged as inadequate. Id. at 185–86, AIM’s Resp. [163] at 8.
Judge Kennedy held that the Court was unable to grant summary judgment on Item 6 because the
Koch Declaration did not state whether other systems were also likely to contain responsive
documents. Id. at 186.
This Court finds that the CIA’s Item 6 search satisfies FOIA. The Agency provided this
Court with a detailed affidavit concerning the Item 6 search. Nelson Decl. ¶ 32–34. The Agency
searched for the documents using Hall’s name and case numbers, searched all systems likely to
contain responsive records, named the supervisor of the search, and provided the Court with an
explanation as to why other systems would only contain duplicate responsive records. Id. ¶ 34.
AIM states that the CIA’s Item 6 search remains inadequate, but puts forth no evidence or
supporting legal argument. AIM’s Resp. [163] at 8–9. Because the CIA’s search methods could
reasonably be expected to produce the information requested, and because plaintiffs offer no
evidence or legal argument to suggest otherwise, the CIA’s item 6 search is found to be
adequate. Thus, in regard to the item 6 search, the CIA is granted summary judgment, and
summary judgment is denied to plaintiffs.
5. Item 8
Plaintiffs’ Item 8 requests “[a]ll records of whatever nature pertaining to the estimates of
fees made in response to the February 7, 2003 Freedom of Information Act request of Mr. Roger
Hall and Studies Solutions Research, Inc., and how each estimate was made.” AIM’s FOIA
19
request [114-1] at 2. AIM, again, claims that the Item 8 search was inadequate, without offering
evidence or a legal argument. AIM’s Resp. [163] at 8–9. Judge Kennedy previously ruled that
plaintiffs had conceded the adequacy of the Item 8 search, and entered judgment in favor the
CIA as to the adequacy of the search for item 8 records, rendering AIM’s argument against the
adequacy of the Item 8 search moot. Hall, 668 F. Supp. 2d at 186.
6. Use of Additional Search Terms
Hall claims that the CIA’s search for responsive documents has been inadequate because
“obvious search terms” were not used. Hall’s Resp. [166] at 9. Hall wants a further search of
CIA records using search terms or activities found in previously released documents from this
action. Id. at 8–14. Hall argues that the use of additional search words “could help pinpoint the
location of records that are very much at the center of Hall’s quest for responsive records.” Id. at
9. The CIA argues that “agencies are generally not obligated to ‘look beyond the four corners of
the request for leads to the location of responsive documents.’” CIA’s Resp. [169] at 2 (citing
Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996)).
The standard for an adequate search is whether it was “reasonably calculated to uncover
all relevant documents.” Weisberg, 705 F.2d at 1351. The question is whether the search itself
was adequate, notwithstanding whether other responsive documents may exist. Steinberg v.
United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
Hall argues that the CIA search is inadequate because it does not employ the terms
“LPW 12,” “Walking Kilo 13,” “Walking K,” “circle search 14,” and “stay behind status 15,” all of
which were terms found in documents released through this litigation. Hall’s Resp. [166] at 9–
12
Hall states that “’LPW’ appears to stand for ‘Laotian Prisoner of War.’” Hall’s Resp. [166] at 9.
13
Hall claims that “Walking K” and “Walking Kilo” are terms that “refer to a symbol used to signal the presence of
POWs.” Id. at 9.
14
“Circle Search” is a term found in document C00479111. Id.
15
“Stay behind status” is a term found in document C00493325. Id at 10.
20
10. However, Hall only cites to a single released document containing each new search term.
Id. Hall also fails to explain why these specific terms are necessary to uncover responsive
documents, simply stating in regard to “LPW”: “[t]his is a significant search term which the CIA
did not employ.” Id. at 9. With “several thousand pages of records” 16 released by the CIA, a
showing that each newly suggested search term existed in a single document is not enough to
find the CIA’s search inadequate without further explanation as to why these terms in particular
would uncover responsive documents that the previous search did not. Because this Court finds
that the original CIA search terms were ‘reasonably calculated to uncover all relevant
documents,” a further search with these new terms in not required under FOIA.
7. Missing Documents
Hall claims that the CIA’s search for responsive documents has been inadequate because
released records reference other documents–or activities that may have created additional
documents–that have not been released or otherwise identified. Hall’s Resp. [166] at 8. Hall
cites records that reference specific attachments that are missing, 17 records that detail activity
that Hall claims would have created documents not produced, 18 and documents that “indicate[]
the intention to create additional documents . . .” which were not produced. 19
Failure to locate specific documents does not render the agency’s search inadequate or
demonstrate that the search was conducted in bad faith. See Twist v. Gonzales, 171 F. Appx.
855, 855 (D.C. Cir. 2005). The inquiry is “whether the search was reasonably calculated to
discover the requested documents, not whether it actually uncovered every document extant.”
SafeCard, 926 F.2d at 1201. Courts measure reasonableness by examining the method of the
16
Id. at 1.
17
Hall’s Resp. [166] at 10.
18
Id. at 12.
19
Id. at 11.
21
search, not by determining whether additional responsive documents might potentially exist.
Cleary, Gottleib, Steen & Hamilton v. Dep’t of Health and Human Servs., 844 F.Supp. 770, 777
n.4 (D.D.C. 1993) (citing Meeropol v. Meese, 790 F. 2d 942, 952–53 (D.C. Cir. 1986)). Here,
some of Hall’s arguments about additional responsive documents are valid, while others lack the
support necessary to move beyond pure speculation.
a. Missing Records, Photographs, and Attachments Specifically Mentioned in Released
Documents
Where specific records, photographs, or attachments are referenced in CIA documents, it
is no longer “mere speculation” that the files exist. Here, the CIA has provided plaintiffs with
documents that reference other specific responsive records that have not been produced. Hall’s
Resp. [166] at 10–14. The CIA argues that plaintiffs “must provide support for the proposition
that [the records] are maintained in the agency’s database or that agency controls them.” CIA’s
Resp. [184] at 3, citing Accuracy in Media, Inc. v. Nat’l Transp. Safety Bd., No. 03–00024, 2006
WL 826070, at *8 (D.D.C. Mar. 29, 2006). The fact that the CIA maintained and controlled the
documents that reference the other documents, many of them attachments, provides support for
the proposition that the CIA maintains and controls those missing records. Therefore, the CIA
must show that it has conducted a reasonable good-faith search for the missing attachments,
enclosures, photographs, and reports mentioned in documents C00482286, C00465737,
C00482286, C00492378, C00492397, C00492546, C00478688, C00492526, C00471978,
C00478651, C00492461, C00492546, C00472096 and C00483710, and provide plaintiffs with
all non-exempt records.
For the search to be adequate, the CIA must provide a declaration that shows the Court
that such a reasonable good-faith search was attempted to locate these missing records. Though
the CIA’s search will not be found inadequate if it is unable to find these attachments, it cannot
22
demonstrate beyond material doubt that its search was “reasonably calculated to uncover all
relevant documents” until those missing responsive documents are searched for.
b. Records Detailing Events that May Have Produced Additional Records That Are Missing
Hall also argues that records detailing activity that may have created additional
documents were not produced, 20 and documents that “indicate[] the intention to create additional
documents . . .” were not produced. 21 For example, document C00482214 refers to the need to
“positively confirm[] the existence of POWs with [redacted], a list of names, and the exact
location.” Hall argues “[t]his indicates the intention to create additional documents regarding
these requirements. Hall’s Resp. [166] at 11. Here, Hall’s argument fails because the existence
of the “missing” records is too speculative.
The information provided in these documents–concerning activities that may produce
additional documents or the intention to create additional documents–does not rise above
“speculation” as to the existence of additional records. There is no indication that any of these
records were actually created, only that there may have been an intention at one point to create
documents that would have been responsive to plaintiffs’ request. Therefore, the CIA is not
required to conduct additional searches concerning records C00465439, C00472095,
C00482214, C00493228, C00479111, C00479111, C00493325, C00478741, and C00480204.
C. Exemption Claims
1. Exemption 1
Judge Kennedy’s 2009 Order found that the CIA met its burden on the exemption 1
claims for records less than 25 years old, but found that the CIA must further justify the
withholding of exemption 1 records that were more than 25 years old. Hall, 668 F. Supp. 2d at20
Hall’s Resp. [166] at 12.
21
Id. at 11.
23
189. Since the Order, the CIA has claimed additional withholdings under exemption 1, in regard
to responsive documents released after that Order. Plaintiffs argue that exemption 1
withholdings by the CIA, DOD, and NSA are improper. Hall’s Memo. of Pts. and Auth. [182]
at 18.
Exemption 1 protects matters that are: “(A) specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). Pursuant to Executive Order 13526, 22 75 Fed. Reg. 707 (Dec. 29, 2009),
information may be classified only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the
United States Government;
(3) the information falls within one of more of the categories of information listed
in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against transnational
terrorism, and the original classification authority is able to identify or
describe the damage.
Id. § 1.1(a). The phrase “damage to the national security” means “harm to the national defense
or foreign relations of the United States from the unauthorized disclosure of information, taking
into consideration such aspects of the information as the sensitivity, value, utility, and
provenance of that information.” Id. § 6.1(l). Information may be classified either at the “top
secret,” “secret,” or “confidential” level, Id. § 1.2(a), and such classified information must fall
within one of the following categories:
22
Hall cites Executive Order 13256. He appears to have transposed the “2” and the “5”, as this executive order
concerns “President’s Board of Advisors on Historically Black Colleges and Universities.” 67 Fed. Reg. 6823 (Feb.
12, 2002).
24
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence sources or
methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including
confidential sources;
(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or
facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures,
projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
Id. § 1.4.
The agency bears the burden of establishing that documents are properly classified as
secret and thus clearly exempt from disclosure. Founding Church of Scientology of Wash., D.C.,
Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979) (citing 5 U.S.C. § 552(a)(4)(B)). However, in
national security cases, “little proof or explanation is required beyond a plausible assertion that
information is properly classified.” Morley, 508 F.3d at 1124. For the reasons discussed below,
the Court holds that the CIA has met its burden for all exemption 1 withholdings.
The CIA argues that it is the original classification authority, Cole Decl. ¶¶ 15, 57–60,
that the withheld information is government information, Id. ¶¶ 16, 57, that it falls within § 1.4,
Id. ¶¶ 17, 57–60, and that the release of the information could be reasonably expected to damage
the national security. Id. ¶¶ 58. The CIA claims the national security concerns exist because the
documents could reveal confidential sources and expose CIA intelligence methods. Id. ¶ 59,
¶ 22–31.
Plaintiffs argue that “[t]he documents released to Hall do not contain the required
classification markings of this or any predecessor Executive orders.” Hall’s Resp. [166] at 28.
Plaintiffs state that that there is only a “stamp which gives a crossed-out classification level, but
there is no indication of who had the authority to place the stamp or when it was put on the
25
document.” Id. Therefore, plaintiffs argue that the CIA must either restore any classification
markings or the Court should find that the exemption 1 claims fail. Id. at 30. However, the CIA
adequately explains the lack of classification markings on the documents–the documents in their
redacted form are not classified–therefore the markings required by § 1.6(a) “are inapplicable to
the documents released to Plaintiffs.” CIA’s Reply [169] at 16. Plaintiffs do not offer a counter
to this argument, therefore the Court finds that the records are properly classified.
Plaintiffs also argue that the exemption 1 claims should fail because Cole’s Declaration
statements may be “based on information provided by others.” Id. at 31. This argument fails,
because a declarant in a FOIA case satisfies the personal knowledge requirement if he or she
“attest[s] to the personal knowledge of the procedures used in handling [a FOIA] request and his
familiarity with the documents in question.” Madison Mech., Inc. v. Nat'l Aeronautics and
Space Admin., No. 99–2854, 2003 WL 1477014, 2003 U.S. Dist. LEXIS 4110 at *17 (D.D.C.
Mar. 20, 2003) (quoting Spannaus v. DOJ, 813 F.2d 1285, 1289 (4th Cir.1987)). Therefore,
Cole’s account that: “I make the following statements based upon my personal knowledge and
information made available to me in my official capacity” as the Information Review Officer
meets the test for the level of personal knowledge necessary for a FOIA declaration. Cole Decl.
¶ 1–4.
Plaintiffs’ argument of the “speculative” 23 nature of the national security concern and the
fact that the region is no longer “the subject of armed conflict or terrorism against the United
States” also fails. Hall’s Memo. of Pts and Auth. [182] at 18. Cole states that the withheld
information concerns human intelligence sources, the disclosure of which, even if they are no
longer living or not given by name, and in an area free from conflict, jeopardizes future
cooperation with the CIA and would reveal methods still in use by the CIA today. Cole Decl.
23
Hall’s Resp. [166] at 36.
26
¶ 22–31. There will always be a certain level of speculation when assessing the dangers of
releasing such information, but this circuit has held that, so long as the agency affidavit contains
“reasonable specificity” and “information logically falls within claimed exemption,” then the
“court should not conduct a more detailed inquiry to test the agency’s judgment.” Larson v.
Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). The Cole Declaration contains the necessary
level of specificity required in exemption 1 claims, as specific documents are referenced, and the
reasons for information withholding cited. Therefore, the Court grants summary judgment to the
CIA in respect to the current exemption 1 withholdings.
Lastly, records over 25 years old that have permanent historical value are automatically
unclassified. Exec. Order No. 12958 § 3.3(a), 60 Fed. Reg. at 19832. However, this does not
apply to information that “could be expected to: reveal the identity of a confidential human
source, or a human intelligence source, or reveal information about the application of an
intelligence source or method. Id. § 3.4(b)(1), 60 Fed. Reg. at 19832. The CIA, in adequate
detail, has demonstrated that the withheld exemption 1 information would expose sources and
reveal intelligence methods. Cole Decl. ¶ 40, 60. This Court finds that the CIA’s exemption 1
declarations contain reasonable specificity and the withholdings logically fall within the
exemption. Therefore, this court grants summary judgment to the CIA in regard to its exemption
1 withholdings and deny summary judgment to plaintiffs.
2. Exemption 2
Judge Kennedy’s 2009 Order denied summary judgment to the CIA in regard to the
exemption 2 documents. Hall, 668 F. Supp. 2d at 190. The Order stated that the CIA must
submit a supplemental filing to the Court with further detail as to its exemption 2 claim, or
disclose to plaintiffs the information previously withheld under that exemption. Id. However,
27
“the CIA asserted exemption (b)(3) for all the redactions where it also asserted ‘low b(2)’” and
Judge Kennedy granted summary judgment to the CIA’s exemption 3 withholdings. CIA’s
Reply [169] at 18; Hall, 668 F. Supp. 2d at 190. Therefore, the CIA correctly states that this
issue is moot. Id. at 18.
3. Exemption 3
The CIA was granted summary judgment on its exemption 3 claims in the 2009 Order
because plaintiffs did not respond to the CIA’s exemption 3 argument. Hall, 668 F. Supp. 2d at
190. However, the CIA has withheld additional information and records under exemption 3, in
reference to Item 4 and 5 responsive records, following the 2009 Order. Cole Decl. ¶ 34. This
Court finds that the CIA has met the burden of supporting its new exemption 3 withholdings and
therefore grants the CIA summary judgment on exemption 3.
Exemption 3 covers records that are
specifically exempted from disclosure by statute . . ., provided that such statute
(A) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld.
5 U.S.C. § 552(b)(3). For a statute to fall under exemption 3, the disclosure prohibition must at
least “explicitly deal with public disclosure.” Reporters Comm. for Freedom of the Press v.
DOJ, 816 F.2d 730, 734 (D.C. Cir.), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987),
rev’d on other grounds, 489 U.S. 749 (1989). An agency invoking exemption 3 must submit
affidavits that provide “the kind of detailed, scrupulous description [of the withheld documents]
that enables a District Court judge to perform a de novo review.” Church of Scientology of Cal.,
Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980). The affidavits need not contain factual
descriptions the public disclosure of which would endanger the agency’s mission, Vaughn v.
28
Rosen, 484 F.2d 820, 826–27 (D.C. Cir. 1973), but neither can they be vague or conclusory.
Church of Scientology, 662 F.2d at 787.
Here, information is withheld under the National Security Act, 50 U.S.C. § 403, et seq.,
the Central Intelligence Agency Act of 1949, 50 U.S.C. § 403g, Section 102A(i)(1) of the
Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i)(1), and 18
U.S.C. § 798, to justify withholdings under exemption 3. Cole Decl. ¶¶ 42–46, 61; Janosek Decl.
¶ 26. Plaintiffs challenge the exemption 3 withholdings in four ways.
First, Hall argues that 50 U.S.C. § 403g doesn’t apply to “deceased [CIA] officers and
employees and those who have been publicly identified as such.” Hall’s Resp. [166] at 37 n.5.
Because Hall concedes that 403g is an exemption 3 statute, 24 the only question is whether “the
withheld material falls within the statute.” Larson, 565 F.3d 857 (D.C. Cir. 2009) (citing
Fitzgibbon v. C.I.A., 911 F.2d 755, 761–62 (D.C. Cir. 1990)). The CIA argues that it does,
because it exempts disclosure of information concerning “the organization, functions, names,
official titles, salaries or numbers of personnel, employed by the CIA.” CIA’s Reply [169] at 17
(citing 50 U.S.C. § 403g) (emphasis added). Because deceased former employees still fall within
the plain language of 403(g) as having been “employed” by the CIA, this Court agrees.
Therefore, the Court holds that the CIA has properly supported its 403(g) withholdings under
exemption 3.
Plaintiffs also argue that “the CIA has presented insufficient evidence of the need to
protect the sources and methods at issue and that there is an unacceptable risk of their disclosure.”
Hall’s Resp. [166] at 38. As explained above, the Court found the CIA’s justification for the
item 1 exemptions to be adequate, and as stated by plaintiffs, “[t]he CIA invokes exemption 3 in
tandem with exemption 1 for virtually every document at issue.” Id. at 37. For the same reasons
24
Hall’s Resp. [166] at 37 n.5.
29
as stated above concerning the withholding of intelligence sources names and methods under
exemption 1, the Court finds that the CIA adequately justified the need to protect the sources and
methods in the redacted documents under exemption 3.
Plaintiffs also argue that the Department of Defense inappropriately invoked exemption 3
in relation to 10 U.S.C. § 150b, because the statute is “clearly discretionary” and therefore not an
exemption 3 statute. Hall’s Memo. of Pts and Auth. [182] at 20. However, the Court finds that
10 U.S.C. § 150b is an exemption 3 statute, because it “(B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).
Section 150b states that the information may “be withheld from disclosure to the public . . .”
when it concerns “any member of the armed forces assigned to . . . a routinely deployable unit.”
10 U.S.C. § 150b. Therefore, § 150b “establishes particular criteria for withholding,” and thus is
an exemption 3 statute.
In the alternative, plaintiffs argue that even if the statute satisfies exemption 3, the DOD
fails to show any of the redacted names “are currently serving with the Armed Forces or
employees of the DOD.” Hall’s Memo. of Pts and Auth. [182] at 20. As discussed above, once
a statute is determined to fall within exemption 3, the only question is whether “the withheld
material falls within the statute.” Larson, 565 F.3d 857 (D.C. Cir. 2009) citing Fitzgibbon, 911
F.2d at 761–62. Here, while granting “substantial weight and due consideration” to the agency
affidavit, the Court finds that it does. Fitzgibbon, 911 F.2d at 762. The Tisdale Declaration
states that the only information withheld from Document C00495778 under 10 U.S.C. § 150b are
the “names of individuals assigned to routinely deployable units.” Tisdale Decl. ¶ 5c. Because
the statute satisfies exemption 3, and because the withheld material falls within the statute, the
Court holds that the 10 U.S.C. § 150b redactions were proper.
30
Plaintiffs also argue that the DOD inappropriately invoked exemption 3 with 50 U.S.C. §
435, which resulted in the redaction of names from 29 documents. Memo. of Pts and Auth.
[182] at 20. DOD claims the redacted names in those documents were missing the necessary
written consent required under 50 U.S.C. § 435. Tisdale Decl. ¶ 5B. Plaintiffs argue that the
DOD was required to consult the PNOK list to determine whether consent was given, and there
is no evidence that the DOD did this before redacting the names. Hall’s Memo. of Pts and Auth.
[182] at 21. In its response, the CIA did not counter Hall’s concerns regarding whether DOD
bothered to consult the provided PNOK list; it simply regurgitated the information from the
Tisdale Declaration. CIA’s Resp. [184] at 15.
The Court finds the statute falls under exemption 3 because it “establishes particular
criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. §
552(b)(3). The statute requires primary next of kin to give written consent to the release of
information concerning their treatment, location, or condition. 50 U.S.C. § 435. However,
because it is unclear whether the DOD consulted the PNOK list, a genuine issue of material fact
exists regarding the redaction of names withheld under 50 U.S.C. § 435, and the Court cannot
grant summary judgment. Therefore, the 29 documents listed under ¶ 5B of the Tisdale
Declaration must be released without the POW/MIA names redacted, or a declaration must be
submitted to the Court specifying that the withheld names are not on the PNOK list.
5. Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorand[a] or letters which would
not be available by law to a party other than an agency in litigation with the agency” from
disclosure. 5 U.S.C. § 552(b)(5). “[T]he parameters of exemption 5 are determined by reference
to the protections available to litigants in civil discovery; if material is not ‘available’ in
31
discovery, it may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human
Servs., 87 F.3d 508, 516 (D.C. Cir. 1996); see also NLRB. v. Sears, Roebuck & Co., 421 U.S.
132, 148 (1975).
a. Deliberative Process Privilege
The deliberative process privilege “shields only government ‘materials which are both
predecisional and deliberative.’” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997)
(quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en
banc)). To show that a document is predicisional, the agency need not identify a specific final
agency decision; it is sufficient to establish “what deliberative process is involved, and the role
played by the documents at issue in the course of that process.” Heggestad v. DOJ, 182 F. Supp.
2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868
(D.C. Cir. 1980)). A document is “deliberative” if it “makes recommendations or expresses
opinions on legal or policy matters.” Vaughn, 484 F.2d at 1143–44. The deliberative process
privilege is intended to “prevent injury to the quality of agency decisions.” Sears, Robuck &
Co., 421 U.S. at 151.
In the 2009 Order, summary judgment was granted to the CIA on its deliberative process
claims, excluding documents 1100665, 1100667, 1100668, 1100669, 1100670, 1100671,
1479603. 25 For these documents, Judge Kennedy held that the CIA must disclose these
documents or include in its supplemental filing details that “illuminate the contents of the
documents and the reasons for non-disclosure.” Hall, 668 F. Supp. 2d at 191 (quoting Defenders
of Wildlife v. U.S. Dep’t of Agric., 311 F. Supp. 2d 44, 60 (D.D.C. 2004)). For the reasons given
25
One document contains “emails and internal memos dated in June of 2004 from individuals in various CIA
directorates and offices,” while five are “memorand[a] . . . addressed to various CIA directorates from CIA’s FOIA
office and pertain to fee estimates for preliminary searches conducted in response to Roger Hall’s FOIA request.”
2008 Vaughn Index, Part 4, at 22–23.
32
below, the Court finds that the CIA has fulfilled its burden under the deliberative process
privilege of exemption 5 for these documents.
The Agency states that it withheld information from documents C00465476 and
C00520816 under the deliberative process privilege. CIA’s Supp. Resp. [148] at 34, Cole Decl.
¶ 88–89. The CIA states that the communications were between the Agency’s executive
Secretariat on behalf of the Director of Central Intelligence and other Agency officers, and
consisted of predecisional deliberations. Cole Decl. ¶ 89–90. Plaintiffs have not responded with
a legal argument, nor have they disputed the CIA’s factual assertions. Therefore, the Court
grants summary judgment to the CIA in regard to the deliberative process withholdings from
these two documents.
The CIA states that six 26 of the documents containing exemption 5 redactions “consist[]
of internal emails, memoranda, and handwritten notes by Agency officers regarding the
calculation of fee estimates for processing Plaintiffs’ 2003 FOIA request.” Cole Decl. ¶ 103.
The Agency states that the communications were between the “Agency’s PPID and various
directorate information-release officers” concerning “the legal and policy issues involved in
processing Plaintiffs’ FOIA request, including recommendations as to the systems of records to
be searched, estimates of the amounts of time required for conducting searches, and opinions
regarding appropriate search methods and likely search costs.” Id. The Agency claims that no
policy recommendations from these documents were ever adopted. Id. Plaintiffs did not respond
with a legal argument, nor did they challenge the CIA’s factual assertions. Because the CIA has
adequately explained to the Court that the redacted information was “pre-decisional,” that the
information concerned recommendations and opinions on legal and policy matters, and that the
recommendations were never adopted, the court grants the CIA summary judgment in regard to
26
1383976, 1383977, 1383978, 1383979, 1383980, and 1383983.
33
the exemption 5 withholdings for these six documents.
The final deliberative process document withholding concerns document 1479603,
“which is a memorandum from the head of the office that processes FOIA requests to one of his
superiors, describes the FOIA request at issue as one involving a very large number of
documents, and contains Agency officers’ opinions about the policy issues raised by processing
such a large request.” Cole Decl. ¶ 104. Of particular note is that the document is over thirty
years old. 27 As noted by Judge Kennedy, the age of a document is a factor to be weighed for a
deliberative process withholding, but it is not determinative. Hall, 668 F. Supp. 2d at 191
(citing Lardner v. U.S. Dep’t of Justice, 2005 WL 758267, at *13 (D.D.C. 2005)). Here, the CIA
has supplemented the record adequately to show the Court that the withheld information
concerns deliberations, and not the results of deliberations, as the documents show no evidence
that the policy recommendations were ever adopted. Cole Decl. ¶ 104. Plaintiffs did not
respond with a credible legal argument, nor did they challenge the factual assertions of the CIA.
Therefore, the Court grants summary judgment to the CIA in regard to the deliberative process
withholdings from document 1479603, and denies summary judgment to plaintiffs.
b. Attorney-Client Privilege
Judge Kennedy’s 2009 Order denied summary judgment to plaintiffs in regard to the
invocation of attorney-client privilege withholdings. Hall, 668 F. Supp. 2d at 192. Summary
judgment was denied because the CIA did not provide adequate information about the
responsibilities of the officers who were the other parties in the withheld communications with
CIA attorneys, and therefore the Court could not “determine whether the officers are individuals
who, by virtue of their authority to represent the Agency, are entitled in their communications
with attorneys to the protections of the attorney-client privilege.” Id. This information was
27
The date of the document is June 4, 1981.
34
necessary, because “[w]here the client is an organization, the [attorney-client] privilege extends
to those communications between attorneys and all agents or employees of the organization who
are authorized to act or speak for the organization in relation to the subject matter of the
communication.” Mead Data Cent., Inc., 566 F.2d at 253 n.24 (citations omitted). For the
reasons stated below, the Court finds that the CIA has supplemented the record with the
necessary information about the withheld communications.
Eleven documents “contain communications between CIA attorneys and information
release professionals concerning the assessment of fees for Plaintiff Hall’s 1998 FOIA
request.” 28 Cole Decl. ¶ 108. Seven documents concerned communications between these same
parties, but in relation to searches conducted for Hall’s 1998 FOIA request. 29 Id. A single
document is described as a “memorandum from a CIA information release professional to CIA
attorneys regarding how Hall’s 1994 FOIA request was processed.” Id. Six documents 30
“contain discussions between CIA information release professionals and attorneys concerning
litigation with Hall over his FOIA requests.” Id. The final document 31 “is a memorandum for a
CIA information release professional from a CIA attorney concerning the identification of
documents responsive to Hall’s 1998 FOIA request.” Id.
The CIA claims that all documents were “prepared with the joint expectation that they
would be held in confidence” and the information was only shared with those who needed it
“perform their official duties.” Id. ¶ 109. The CIA further provides that “all individuals who
received the communications at issue were authorized to make, implement, or oversee decisions,
or to provide information, concerning the matters discussed in the communications.” Id.
28
Documents 1370083,1370539, 1370544, 1371726, 1371727, 1371732, 1371734, 1371736, 1383981, 1383983,
and 1383985.
29
Documents 1370085, 1370089, 1370540, 1370544, 1371724, 1371726, and 1371733.
30
Documents 1370086, 1370544, 1371725, 1371726, 1371729, and 1383986.
31
Document 1370081.
35
Plaintiffs have not responded to the CIA’s argument, either with legal arguments or to challenge
the CIA’s factual assertions. Therefore, the Court finds that the CIA’s supplemental declaration
has satisfied the requirements for all information withheld under the attorney-client provision of
exemption 5, grants the CIA summary judgment for these withholdings, and denies summary
judgment to plaintiffs.
c. Attorney Work Product Privilege
In Judge Kennedy’s 2009 Order, he granted summary judgment to the CIA on all
withholdings under attorney work product privilege. Hall, 668 F. Supp. 2d at 193. To the
Court’s knowledge, the CIA has not withheld any new information under attorney work product
privilege.
6. Exemption 6
Exemption 6 allows an agency to withhold from disclosure “personnel and medical files
and similar files” if its disclosure would constitute a clearly unwarranted invasion of personal
privacy. The phrase “similar files” is interpreted broadly and exempts all information that
“applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599–603
(1982). However, information about federal employees generally does not qualify for
protection. See Arieff v. Dep’t of the Navy, 712 F.2d 1462, 1467–68 (D.C. Cir. 1983) (declining
to protect information about a large group of individuals); Aguirre v. SEC, 551 F. Supp. 2d 33,
54 (D.D.C. 2008) (“Correspondence does not become personal solely because it identifies
government employees.”). While “similar files” is construed broadly, it must not become devoid
of meaning altogether.
There must be some personal information that relates to a particular individual for
exemption 6 protection to be warranted. Typical personal information protected under
36
exemption 6 includes “place of birth, date of birth, date of marriage, employment history, and
comparable data.” See Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C.
Cir. 1989). In examining an exemption 6 withholding, the court must balance the privacy
interest at stake against the public’s interest in disclosure. Fund for Constitutional Gov’t, 656
F.2d at 862. “Under exemption 6, the presumption in favor of disclosure is as strong as can be
found anywhere in the Act.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir.
2002).
Judge Kennedy’s 2009 Order denied summary judgment to the CIA in regard to its
exemption 6 withholdings because the CIA did not provide adequate justification. Hall, 668 F.
Supp. 2d at 193. Since the 2009 Order, the CIA has withheld additional information under
exemption 6. The withholdings now involve records responsive to Item 3, 4, 6, and 8. For the
reasons discussed below, the Court grants summary judgment to the CIA in regard to some
exemption 6 claims, but denies summary judgment for others.
The CIA redacted information concerning the names and home addresses of CIA officers
from Item 4 documents. Cole Decl. ¶ 49. The CIA argues this was necessary to protect
individuals and their families, some of whom were undercover. Id. ¶ 50. The CIA also used this
same justification for a single Item 3 document. 32 For classified agents, the CIA redacted the
information under exemptions 1 and 3, as well as exemption 6. Id. ¶ 48 n.26. As discussed in
the exemption 1 analysis, the CIA employees’ names were correctly redacted under exemption 1
and the Court has granted summary judgment to those redactions, rendering the exemption 6
withholding to these names moot.
Hall first challenges the exemption 6 withholdings of three specific documents:
C00942526, C00472096, and C00465780. Hall’s Resp. [166] at 43–44. The first document,
32
C01352210
37
C00942526, is “a letter to the Chief Counsel of the Senate Select Committee from the CIA’s
Deputy Director for Senate Affairs, whose name is redacted, as are the names of a couple of Air
America pilots whose plane crashed in March 1977.” 2011 Hall Decl. ¶ 40, Att. 44. Hall claims
that all redacted names were “involved in government operations” and that there is “great public
interest” in their identities. Hall’s Resp. [166] at 43. Hall next challenges the redaction of the
name of a photographer of crash sites from document C00472096. Id. Hall argues that
photographers are usually interested in having their names attached to their work, and that the
fact that the name is in a government document shows how the government functions. Id. at 44.
Finally, Hall challenges the redaction of 58 names of POWs in a CIA intelligence Information
Report, listed as document C00465780. Hall argues that the public interest is high because the
names of POWs are “commonly publicized in newspapers” and that the privacy interest is low
because the government contends that there are no living Vietnam Era POWs, and that death
“greatly diminishes any privacy invasion.” Id.
Hall also challenges the withholdings of the DOD and NSA under exemption 6, which he
calls “purely conclusory in their exemption 6 analysis” and that the agencies “assume it is
sufficient that names might be disclosed” which “leads to extreme results,” including the
withholding of certain photographs cited by Hall. Hall’s Memo. of Pts and Auth. [182] at 23.
In reply to Hall’s specific challenges, the CIA reiterates its position that the withholdings
were proper because they consisted of names of individuals, and that the CIA concluded that
there was “a significant privacy interest in the information withheld in these documents which
overrides any public interest in the information.” CIA’s Reply [169] at 19. The CIA also claims
that some withheld exemption 6 information contains not only names, but date of birth, place of
birth, social security number, blood type, place of residence, names of family members or
38
religious affiliation. Supp. Culver Decl. ¶ 47. Not including the names of the individuals
themselves, the Court finds that the privacy interest in the remaining information is high, and the
public interest low. Therefore, all exemption 6 withholdings concerning date of birth, place of
birth, social security number, blood type, place of residence, names of family members, or
religious affiliation, is properly withheld, and the Court grants summary judgment to the CIA as
to these withholdings.
However, the Court holds that the CIA has not overcome the heavy “presumption in
favor of disclosure” found in exemption 6 in regard to the names themselves. Nat’l Ass’n of
Home Builders, 309 F.3d at 32. Though the CIA is correct that the superfluous information such
as blood type has a very low public interest, the names of these individuals themselves appear to
be the subject of substantial public interest. 33 As argued by Hall, there is an especially low level
of privacy interest in the case of deceased individuals. 34 The CIA has failed to respond to this
argument, either by explaining that no deceased individual’s names have been withheld, or by
explaining why the privacy interest still exists for those deceased, some supposedly for several
decades. Therefore, in regard to the names–not including the names of CIA employees, which
were granted summary judgment under exemption 3–of individuals themselves, and withheld
photographs, the Court denies summary judgment to the CIA for the exemption 6 claims and
grants summary judgment to plaintiffs.
7. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5
33
Hall cites the Vietnam Veterans Memorial in Washington D.C., as well as the media attention paid to Vietnam
POW/MIAs. Hall’s Memo. of Pts and Auth. [182] at 23.
34
“[D]eath clearly matters, as the deceased by definition cannot personally suffer the privacy-related injuries that
may plague the living.” Campbell, 164 F.3d at 33. However, a court must “account for the fact that certain
reputational interests and family-related privacy expectations survive death.” Id.39
U.S.C. § 552(b). Reasonably segregable portions of withheld documents must be disclosed
unless they are “inextricably intertwined with exempt portions.” Mead Data Cent., 566 F.2d at
260. “FOIA places the burden of justifying nondisclosure on the agency seeking to withhold
information.” Id. The reasoning behind unsegregability must be detailed, not conclusory
statements. Id. at 261. Though, “agencies should not be forced to provide such a detailed
justification that would itself compromise the secret nature of potentially exempt information.
Id.
Judge Kennedy’s 2009 Order held that the CIA’s declarations and Vaughn indexes lacked
the necessary specificity in regard to segregability. Hall, 668 F. Supp. 2d at 194. The Order
held that the CIA’s supplemental filings must specify in detail the portions that are disclosable
and which are exempt, making specific findings for each document withheld and correlating
claimed exemptions with specific passages. Id. Because the CIA has adequately demonstrated
with reasonable specificity that no withheld documents contain reasonably segregable factual
information, both in the records released before the 2009 Order and after, the Court holds that the
CIA has met the segregability requirements under FOIA.
The CIA responded to the 2009 Order specifically in regard to Item 4 segregable
information, claiming that all reasonably segregable information had been released. CIA’s Supp.
Resp. [148] at 12, Cole Decl. ¶ 66–67. Hall responds that that there is evidence that
segregability has not been satisfied, because, while citing specific documents, he shows that
many documents appear to have redactions without exemption claims, various large documents
have been withheld in full, and some redactions appear to be made inconsistently. CIA’s Resp.
[166] at 19–26.
40
The CIA counters that proper segregation of Item 4 documents is evidenced by the large
number of documents released in part (970), and the “few” that were withheld in full (271).
CIA’s Reply [169] at 14. Unlike the CIA, the Court sees 271 documents withheld in full to be a
substantial number. However, the CIA has included–both in relation to the Item 4 withholdings
as well as other responsive documents withholdings–detailed information concerning the
withholdings in corresponding Vaughn indexes.
For example, document number C00579939 is a two page document withheld in full by
the CIA. 35 The CIA provides the subject of the document, the exemptions claimed, and a
document description:
This document is a 2-page cable providing a compilation of information on a
foreign government. The entire document is derived from a sensitive CIA source
of intelligence, refers to specific foreign government entities, and includes
personal identifying information including a name, title and date/place of birth.
The document also includes CIA typed and handwritten analysis of the
information, CIA control markings and other CIA organizational data including
routing details, CIA dissemination information and information about a private
individual. It is currently and properly classified as SECRET.
ECF No. 154 Ex. C 1–4, at 111. The Court finds this description to contain specific findings in
sufficient detail to meet the segregability requirements under FOIA. Because the CIA’s Vaughn
indexes pertaining to other CIA withholdings contain similar detail, the Court holds that the CIA
has met its burden of providing sufficient reasoning and detail in its Vaughn indexes to satisfy
FOIA’s segregability requirements. Therefore, the CIA is granted summary judgment in regard
to segregability, and summary judgment for plaintiffs is denied.
D. Discovery
Hall’s previous request for discovery was denied by Judge Kennedy in his 2009 Order.
Hall, 668 F. Supp. 2d at 196. Hall argued that discovery was necessary to show that the CIA
35 The Vaughn index for C00579939 is found in ECF No. 154 Ex. C 1–4, at 111.
41
possessed records that it had not provided him. Id. Judge Kennedy denied the request because
Hall was unable to show that the CIA had acted in bad faith. Id. Plaintiffs again ask for
discovery. Hall’s Resp. [166] at 45; Hall’s Memo. of Pts and Auth. [182] at 8.
“Discovery is not favored in lawsuits under the FOIA. Instead, when an agency’s
affidavits or declarations are deficient regarding the adequacy of its search . . . the courts
generally will request that the agency supplement its supporting declarations.” Judicial Watch,
Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (citing Nation Magazine,
Wash. Bureau, 71 F.3d at 892; Oglesby, 920 F.2d at 68). Courts may permit discovery in FOIA
cases where a “plaintiff has made a sufficient showing that the agency acted in bad faith.”
Voinche v. FBI, 412 F. Supp. 2d 60, 71 (D.D.C. 2006) (citing Carney v. U.S. Dep’t of Justice, 19
F.3d 807, 812 (2d Cir. 1994)).
Hall argues that discovery is necessary because “the adequacy of the search in this case is
a disputed fact,” and that “he cannot begin to present a full and complete record on this issue
without being afforded an opportunity to take discovery.” Hall’s Memo. of Pts and Auth. [182]
at 8–9. Hall also argues that discovery is necessary due to the classification of some documents,
and because “several persons who have given [Hall] significant information about CIA
operations and activities which would have generated records pertaining to POW/MIAs have
refused to provide such information without what they regard as the protection of a court
subpoena or unless they are called as witnesses at an evidentiary hearing.” Hall’s Memo. of Pts
and Auth. [182] at 10. For the reasons discussed below, this Court denies plaintiffs’ discovery
request.
First, this Court does not find evidence of bad faith on the part of the CIA. Plaintiffs
argue that “the CIA’s bad faith is manifest by its abuse of the FOIA’s fee waiver provisions.”
42
AIM’s Resp. [181] at 10. Plaintiffs cite to the fact that “the CIA’s exorbitant fee
estimates . . . changed over time.” Id. But just as noted by Judge Kennedy in the 2009 Order,
plaintiffs have “provided no evidence for his contention that the CIA engaged in
‘misbehavior’ . . . .” Id. at 40. Estimating the search fees–especially of such a broad search as
that of the plaintiffs–is no doubt a difficult proposition, and a recalculation of those fees does not
show that the previous estimate was intentionally inaccurate. 36
Second, the argument plaintiffs put forward as cause for discovery–an inadequate search
shown by missing documents–is premature. As discussed above, the CIA has been ordered to
search for all 1,711 names provided by plaintiffs, and to search both the CADRE system and the
agency archives, as well as any other system likely to contain responsive records. It is possible
that the “missing” documents will be found in this new search. Because plaintiffs have failed to
show bad faith on the part of the CIA, and because the CIA has been ordered to carry out
additional searches, this Court denies plaintiffs request for discovery at this time.
E. In Camera Inspection
FOIA gives district courts the discretion to examine the contents of requested agency
records in camera “to determine whether such records or any part thereof shall be withheld.”
See 5 U.S.C. § 552(a)(4)(B). “The decision whether to perform in camera inspection is left to
the ‘broad discretion of the trial court judge.’” Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C.
Cir. 1991) (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)).
Agency affidavits are sufficient to justify summary judgment without in camera inspection when
they meet the following standard:
36
Not only have plaintiffs failed to show the previous “exorbitant” fee estimates were made in bad faith, there is no
evidence that plaintiffs have been charged for the thousands of documents provided to them, either before the 2009
Order, or since. Hall, 668 F. Supp. 2d at 38 n.26, 39 n.27.
43
[T]he affidavits must show, with reasonable specificity, why the documents fall
within the exemption. The affidavits will not suffice if the agency’s claims are
conclusory, merely reciting statutory standards, or if they are too vague or
sweeping. If the affidavits provide specific information sufficient to place the
documents within the exemption category, if this information is not contradicted
in the record, and if there is no evidence in the record of agency bad faith, then
summary judgment is appropriate without in camera review of the documents.”
Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937,
(1980). “[W]hen the agency meets its burden [under FOIA] by means of affidavits, in camera
review is neither necessary nor appropriate.” Weissman v. CIA, 565 F.2d 692, 696–97 (D.C. Cir.
1977). However, “in camera inspection may be particularly appropriate when either the agency
affidavits are insufficiently detailed to permit meaningful review of exemption claims or there is
evidence of bad faith on the part of the agency,” when the number of withheld documents is
relatively small, or “when the dispute turns on the contents of the withheld documents, and not
the parties’ interpretations of those documents.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir.
1996).
While FOIA provides the Court the option to conduct in camera review, 5 U.S.C. §
552(a)(4)(B), it by no means compels the exercise of that option. See NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 224 (1978). It is within the Court’s “broad discretion” to decline to
conduct in camera review where, as here, the Court believes that in camera inspection is
unnecessary “to make a responsible de novo determination on the claims of exemption.” Carter
v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987).
Judge Kennedy addressed Hall and AIM’s previous request for in camera review of “a
sampling” of documents in his 2009 Order. Hall 668 F. Supp. 2d at 196. He found no evidence
of bad faith on the part of the CIA, and though there were insufficiencies in the CIA’s Vaughn
44
indexes, the Court expected that the CIA’s supplemental filings to correct the deficiencies. Id.Therefore, the Court declined in camera review at that time. Id.Plaintiffs continue to ask for in camera review of an unspecified “small number of
documents.” 37 Hall’s Resp. [166] at 27. Hall’s argument in support of in camera review is
based on “segregability issues” relating to documents released in part. Id. Plaintiffs have also
claimed bad faith on the part of the CIA throughout their pleadings. Though the argument does
not appear to be made in direct support of in camera review, no evidence of bad faith on the part
of the CIA has been shown by plaintiffs. 38 For the reasons given below, this Court chooses not
to review documents in camera at this time.
Hall argues that in camera review is appropriate here because “[m]any of the documents
which have been released in part raise segregability issues.” Id. He then cites two documents in
support of this assertion. Id. The first had “several lines withheld following ‘comment.’” Id. In
the other, “a substantial passage under the heading ‘Summary’” had been “deleted,” even though
the contents beneath the summary had been released in full. Id. at 27–28.
In relation to the first document, Hall claims it is “unlikely that these passages do not
include some information that cannot reasonably be expected to disclose protected sources and
methods.” Id. at 27. Hall does not assert that this is evidence of bad faith, he appears to simply
imply that the redaction is improper, though he gives no explanation as to why. The CIA did not
directly address Hall’s concerns over this document, instead resting on its record and previous
37
Hall argues that “[a] relatively small [number] of documents selected by plaintiffs might enable to the Court to cut
the heart of some of the major issues presented in a way that would greatly facilitate its resolution.” Hall’s Resp.
[166] at 27.
38
AIM claims bad faith on the part of the CIA in reference to the Item 6 and 8 searches, claiming that information
from those documents would “demonstrate the CIA’s pattern and practice of abusing the FOIA’s search fee
provisions . . . .” AIM’s Resp. [163] at 9. AIM argues that this “impugns the credibility of its affidavits” such that
the CIA is not entitled to summary judgment. AIM’s Resp. [181] at 9–11. The CIA has since waived the fees,
which begs the question of how the previous fee estimates show bad faith on the part of the CIA.
45
submissions. CIA’s Reply [169] at 19. This empty allegation by Hall, without more, is not
enough to persuade this Court to grant in camera review.
With the second document, the CIA admitted that the summary was redacted in error, and
provided plaintiffs with a copy of the record with the summary portion intact. Id. at 21. Though
the CIA redacted the information in error, the Court finds that the treatment of this document
does not persuade this Court to review documents in camera. Once the issue of the redacted
summary was brought to the attention of the CIA, it was corrected. Id. When thousands upon
thousands of pages of records are involved, it is inevitable that some unnecessary redactions will
be made. Because the segregability issues cited by Hall are minor, and because plaintiffs have
provided no evidence of bad faith on the part of the CIA, plaintiffs do not offer persuasive
arguments as to the necessity of in camera review in this case. Thus, the Court again declines to
review records in camera at this time.
V. CONCLUSION
For the foregoing reasons, the Court will GRANT IN PART and DENY IN PART the
CIA’s Motion for summary judgment, and GRANT IN PART and DENY IN PART plaintiffs’
Cross-Motion for summary judgment, and DENY plaintiffs’ Motions for in camera review and
discovery.
A separate order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on August 3, 2012.
46