Hardway v. Central Intelligence Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAN HARDWAY et al.,
Plaintiffs,
v. Civil Action No. 17-1433 (TJK)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
Plaintiffs Dan Hardway, Edwin Lopez, and G. Robert Blakey worked for a congressional
committee in the 1970s that investigated the assassinations of President John F. Kennedy and Dr.
Martin Luther King, Jr. They suspected that the Central Intelligence Agency (CIA) was
interfering with their investigation and spying on them. About forty years later, they sought to
confirm those suspicions by requesting records from the CIA under the Freedom of Information
Act (FOIA). Dissatisfied with the CIA’s response, they sued, challenging the adequacy of the
CIA’s searches and its decision to redact its employees’ names from the two documents it
released to them. After the parties moved for summary judgment, the Court granted the CIA’s
motion as to one portion of the search (and related redactions) but denied both motions in all
other respects. The parties have now filed renewed motions for summary judgment. For the
reasons explained below, the Court will grant the CIA’s motion and deny Plaintiffs’ cross-
motion.
Background
The Court assumes familiarity with the facts of this case as reflected in its prior opinion,
Hardway v. Central Intelligence Agency, 384 F. Supp. 3d 67 (D.D.C. 2019). In May 2017,
Plaintiffs submitted a FOIA request to the CIA for eight types of records. See ECF No. 1-1 at 1.
These were:
A. All “201” files, records, information, or materials, including “soft files,”
pertaining to Dan L. Hardway, Edwin Lopez, and/or G. Robert Blakey. This
includes, but is not limited to, covert, as well as overt, 201 files and
counterintelligence files, records, information or materials related to or
referring to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey.
B. All “P” files, records, information or materials, including, but not limited to
“soft” files, related to or referring to Dan Hardway, Ed Lopez, and/or G. Robert
Blakey.
C. Any and all files, records, information or materials of the Office of Security
related to or referring to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey.
D. Any and all files, records, information or materials related or referring to
surveillance of Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, wherever
that surveillance may have occurred, including, but not limited to, Mexico,
Cuba and the United States and including both surveillance conducted by or on
behalf of the Central Intelligence Agency or any other agency of the United
States, or any agency of any foreign country, and reported to the Central
Intelligence Agency, including, but not limited to, surveillance of any
interaction between Dan L. Hardway, Ed Lopez, Gaeton Fonzi, and/or G.
Robert Blakey, and members or representatives of the Cuban Interest Section,
or other representatives of the Cuban government. . . .
E. Any and all files, records, information or materials generated in, relating to or
referencing, the years 1976 through 1979 between the CIA and any
representative of a foreign government, including but not limited to a foreign
government’s intelligence, counterintelligence, law enforcement, judicial or
police authorities, or a representative of any foreign news interest which (a)
relate to or reference Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, or
(b) relate to or reference any activity of the House Select Committee on
Assassinations (HSCA) and any staff member of the HSCA, including but not
limited to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, including but
not limited to HSCA staff trips to, and activities while in, Mexico and Cuba.
F. Any and all psychological profiles of, about, on, by, or referring to Dan L.
Hardway, Ed Lopez, Gaeton Fonzi, and/or G. Robert Blakey, including any and
all files, records, information and materials pertaining to any dissemination
thereof.
G. Any and all operational files, non-operational files, records, information or
materials, including but not limited to Counterintelligence (CI) and autonomous
operations, regarding operations aimed at, targeting, related to or referring to
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the HSCA and any member of the HSCA or its staff, including but not limited
to Dan L. Hardway, Ed Lopez, Gaeton Fonzi, and/or G. Robert Blakey.
H. Copies of all search slips, search instructions, routing slips or routing forms,
search memoranda, letters, telephone messages, emails or any other form of
written or recorded communication in any format whatsoever regarding the
searches conducted in response to this request or any other request for
information responsive to requests denominated A through G above.
Id. at 1–3. Having received no response, Plaintiffs filed this suit. ECF No. 1 (“Compl.”) ¶ 13.
The CIA grouped Plaintiffs’ requests into four categories, based on where it determined
responsive records might be located: (1) records within the Office of Security; (2) records within
the Directorate of Operations; (3) personnel records; and (4) records related to its searches for
records in the previous three categories. Hardway, 384 F. Supp. 3d at 74. The CIA ultimately
released two records to Plaintiffs: non-disclosure agreements signed by Blakey during his work
for the HSCA in the 1970s. Id.
After the parties moved for summary judgment, the Court found that the CIA had
properly searched for records within the Office of Security and properly redacted the documents
it had produced, and it granted summary judgment for the CIA on those aspects of Plaintiffs’
claims. Id. at 80. But it denied summary judgment as to the adequacy of the CIA’s searches
related to the other three categories. Id. The parties have now filed renewed motions for
summary judgment on the remaining issues. See ECF No. 25; ECF No. 27. In support of its
motion and to remedy the deficiencies noted by the Court in its prior opinion, the CIA has
submitted two supplemental declarations by Antoinette Shiner, an Information Review Officer
for the CIA’s Litigation Information Review Office. ECF No. 25-3 (“Second Supp’l Shiner
Decl.”); ECF No. 28-2 (“Third Supp’l Shiner Decl.”).
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Legal Standard
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “In reviewing a motion for summary judgment under the FOIA, the district
court conducts a de novo review of the record.” Tokar v. U.S. Dep’t of Justice, 304 F. Supp. 3d
81, 89 (D.D.C. 2018) (citing 5 U.S.C. § 552(a)(4)(B)).
FOIA requires that an agency search for and disclose requested records unless they fall
within one of nine exemptions. See 5 U.S.C. § 552. The agency is entitled to summary
judgment on the adequacy of its search if it shows “that it made a good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
agency can make this showing through an affidavit “setting forth the search terms and the type of
search performed, and averring that all records likely to contain responsive materials (if such
records exist) were searched.” Id. “Agency affidavits—so long as they are relatively detailed
and non-conclusory—are accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.” Mobley
v. CIA, 806 F.3d 568, 581 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Still, an agency must submit more
than “vague, conclusory affidavits, or those that merely paraphrase the words of a statute,” to
allow the Court to review the agency’s search efforts. See Church of Scientology of Cal., Inc. v.
Turner, 662 F.2d 784, 787 (D.C. Cir. 1980).
This Circuit “applies a reasonableness standard to determine whether an agency
performed an adequate search.” Mobley, 806 F.3d at 580. The Court’s inquiry turns on
methods, not results. Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)
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(“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the search.”).
In deciding what physical and electronic locations to search for responsive records, an
agency “cannot limit its search to only one record system if there are others that are likely to turn
up the information requested.” Oglesby, 920 F.2d at 68. It must, “[a]t the very least, . . . explain
in its affidavit that no other record system was likely to produce responsive documents.” Id.
Beyond the locations searched, an agency must explain its search methods and the terms used.
Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 403 (D.C. Cir. 2017); see also
Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d 26, 38 (D.D.C. 2017) (“At a bare minimum, the
agency’s affidavits need to specify ‘what records were searched, by whom, and through what
process.’” (quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994))).
Analysis
A. Directorate of Operations Records
The Court previously held that the CIA’s declarations about its search of the Directorate
of Operations—where the CIA determined that “201” records, surveillance records, records
related to communications with foreign governments, psychological profiles, and
counterintelligence records (Plaintiffs’ Requests A, D, E, F, and G) would likely be located—
were insufficiently detailed to allow the Court to determine whether it had conducted an
adequate search. Hardway, 384 F. Supp. 3d at 78. In particular, Shiner’s original declarations
were lacking in two respects: first, they did not explain whether any records systems other than
the one searched were reasonably likely to contain responsive documents, and second, they did
not sufficiently describe how the agency searched its nonoperational files. Id.
Shiner’s new declarations cure these deficiencies. First, she clarifies that “experienced
CIA information management professionals” identified and searched “a particular system of
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records maintained by the Directorate of Operations that was reasonably likely to contain
responsive records” to Plaintiffs’ Requests A, D, E, F, and G (if any such records existed) and
that “no other record systems were reasonably likely to contain responsive records.” Second
Supp’l Shiner Decl. ¶¶ 11–13. She also explains that this records system, an electronic database,
contains both operational and nonoperational files. Id. ¶ 13. Thus, the CIA searched
nonoperational records in the Directorate of Operations in substantially the same way it searched
for operational records. Id. For both operational and nonoperational records about Plaintiffs, the
CIA queried its database with variations on the Plaintiffs’ names, standing alone and close to
“HSCA” or “House Select Committee on Assassinations,” and for any other potentially
responsive nonoperational records, it also queried the database with the name Gaeton Fonzi, as
well as the terms “HSCA,” and “House Select Committee on Assassinations.” 1 See id.; Third
Supp’l Shiner Decl. ¶ 2; ECF No. 15-3 ¶¶ 17–19; ECF No. 19-1 ¶ 12. Shiner explains that
because these terms would identify all extant references to Plaintiffs and Fonzi, the CIA’s search
cast a broader net than Plaintiffs’ request, and any documents responsive to their request within
the Directorate of Operations would have been captured by this search. See Second Supp’l
Shiner Decl. ¶ 13.
In summary, in its renewed motion the CIA has: (1) asserted that no records system other
than the database searched was reasonably likely to contain responsive documents; (2) clarified
that it searched for nonoperational files in the database in substantially the same way it searched
for operational files, since both were located there; and (3) explained the search terms it used to
1
The CIA’s search of its operational records was limited to those about Plaintiffs because by
statute, it may exclude operational records from its searches unless U.S. citizens “have requested
information on themselves,” 50 U.S.C. § 3141(a), (c)(1).
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electronically search the nonoperational files in that database. It has thus filled the gaps left open
in its prior motion for summary judgment. See Hardway, 384 F. Supp. 3d at 78.
Plaintiffs raise several challenges to the CIA’s representations. First, they argue that
Shiner’s second supplemental declaration, in which she clarifies that the Directorate of
Operations’ operational and nonoperational files are kept in the same database, conflicts with her
prior declarations, because she had previously represented that the CIA did not search for
operational files on Fonzi. See ECF No. 27-1 at 4–5. If, they argue, both sets of files are stored
in the same database and searched through the same interface, Shiner could not have been
truthful when she said that the CIA did not search operational files on Fonzi. Id. In its reply, the
CIA responds that there is no inconsistency between her two declarations, because “the CIA
sought only non-operational files” pertaining to Fonzi and “its search was performed to locate
potentially responsive non-operational files that may have existed within the database.” Third
Supp’l Shiner Decl. ¶ 3. The Court agrees that there is no contradiction, nor does Shiner’s
second supplemental declaration support an inference of untruthfulness. That the two sets of
files are in the same database does not imply that the CIA must have searched operational files
when querying the database for records pertaining to Fonzi. Indeed, in its prior opinion, the
Court expected that the two sets of files may have been housed together. Hardway, 384
F. Supp. 3d at 78. Plaintiffs’ objection on this point therefore fails.
Next, Plaintiffs argue that the scope of the CIA’s search was unduly narrow. The CIA
determined that any records responsive to Plaintiffs’ Requests A, D, E, F, or G would exist in the
Directorate of Operations. See Second Supp’l Shiner Decl. ¶ 11. Plaintiffs disagree, arguing that
the relevant records could be located in several different offices within the CIA. See ECF No.
27-1 at 5–7. But the Court already rejected this argument. Hardway, 384 F. Supp. 3d at 77 n.3.
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Plaintiffs, who largely reassert points already made in their prior motion, do not show “an
intervening change in law” or that the Court’s previous decision was “clearly erroneous and
would work a manifest injustice.” Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999)
(quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)). And the one
new argument they advance—that the CIA must also search records that were moved to the
National Archives and Records Administration (NARA) under the President John F. Kennedy
Records Collection Act of 1992, 44 U.S.C. § 2107 (note) (JFK Records Act)—is in any event
unpersuasive. See ECF No. 27-1 at 7. Plaintiffs provide no reason to believe that the records at
NARA would contain relevant documents, simply asserting in conclusory fashion that they “are
likely to contain responsive records.” Id. And Plaintiffs identify no legal basis to require the
CIA to search for responsive documents in NARA’s JFK Collection. Indeed, an agency need
only search its own records in response to a FOIA request. See Judicial Watch, Inc. v. Dep’t of
Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (“The FOIA requires disclosure only of ‘agency
records,’ which are documents created or obtained by an agency and under the agency's control
at the time the FOIA request is made.”). And Morley v. CIA, 508 F.3d 1108, 1120 (D.C. Cir.
2007), on which Plaintiffs rely, holds only that the CIA cannot avoid searching its own records
because copies of those records may be publicly available at NARA. See id. at 1119. Here,
unlike in Morley, the CIA has not tried to invoke the existence of the JFK Collection to avoid
searching its own records.
Third, Plaintiffs argue that the CIA’s search terms were insufficient because they did not
include the term “MHCHILD,” which Plaintiffs allege was a code name for a CIA operation
aimed at the HSCA. See ECF No. 27-1 at 5–6; ECF No. 30 at 6–7. But “[i]n general, a FOIA
petitioner cannot dictate the search terms for his or her FOIA request.” See Bigwood v. U.S.
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Dep’t of Defense, 132 F. Supp. 3d 124, 140 (D.D.C. 2015). Plaintiffs argue that documents
containing this term would likely be responsive to Request G, which seeks information about,
among other things, “operations aimed at, targeting, related to or referring to the HSCA and any
member of the HSCA or its staff.” Compl. ¶ 12. 2 But even assuming that a CIA operation with
that name existed, and that it did target, relate, or refer to the HSCA or any member of the HSCA
or its staff, Plaintiffs have not explained why any responsive records would not have been
captured by the searches the CIA undertook. 3 See Second Supp’l Shiner Decl. ¶ 13; ECF No.
15-3 ¶¶ 18–19. Because the CIA’s search terms were “reasonably tailored to uncover documents
responsive to the FOIA request” and Plaintiffs have not shown how the MHCHILD term could
be expected to uncover additional responsive documents, this objection also fails. Bigwood, 132
F. Supp. 3d at 140 (internal quotation omitted).
Fourth, Plaintiffs argue that the Court should not credit Shiner’s assertion that none of the
hits generated by the search of the Directorate of Operations were in fact responsive to their
requests because of the “inherent contradictions” in her declarations as well as the CIA’s alleged
lack of credibility generally. ECF No. 27-1 at 8. The Court cannot agree. As to Shiner
2
Plaintiffs also argue that files about MHCHILD would be contained in records held outside the
Directorate of Operations, and so the CIA should have searched the Office of Security for
records responsive to Request G. ECF No. 30 at 6. But, as discussed above, the Court has
already decided this issue in the CIA’s favor. Additionally, in responding to Plaintiffs’ Request
C, the CIA searched the Office of Security for any references to Plaintiffs, and the Court found
this search to be adequate. Hardway, 384 F. Supp. 3d at 74–77.
3
For example, to the extent any responsive records were located in the Directorate of
Operations’ operational files—MHCHILD was, after all, purportedly an operation—Plaintiffs
would not be entitled to them unless the record was about one of them. See 50 U.S.C. § 3141(a),
(c)(1). And they have not explained why the CIA’s searches using their names would not have
uncovered all of them. ECF No. 19-1 ¶ 12. Similarly, to the extent any responsive records were
located in its nonoperational files, Plaintiffs have not shown why the CIA’s searches using their
names, the name Gaeton Fonzi, or the terms “HSCA” and “House Select Committee on
Assassinations” would not also have identified all of them. ECF No. 15-3 ¶ 18–19.
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specifically, the Court has already rejected Plaintiffs’ argument that her declarations are
contradictory. And as to the CIA generally, Plaintiffs do not provide any basis for the Court to
reconsider its prior holding that their argument relies on “historical conduct” insufficient to
disturb the presumption of good faith accorded the agency in this action. Hardway, 384
F. Supp. 3d at 76 n.2. In their renewed motion, Plaintiffs argue that the Court was “mistaken[]”
in so construing their argument, claiming that the alleged agency misconduct relates to “the
instant case” because it involves the subject matter underlying their FOIA request. ECF No. 27-
1 at 8. But Plaintiffs cite no authority for the proposition that decades-old alleged agency
misconduct can serve to negate the presumption of good faith afforded that agency in a FOIA
proceeding simply because the alleged misconduct is the subject matter of the FOIA request at
issue. See Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979);
Assassination Archives & Research Center v. CIA, 177 F. Supp. 2d 1, 11 (D.D.C. 2001) (finding
that the plaintiff’s “statement that the CIA has previously acted improperly in withholding
information is insufficient to overcome the deferential standard afforded to agency affidavits”). 4
And the Court sees no reason why that should be so.
4
In their reply brief, Plaintiffs argue that the CIA has misrepresented its conduct in the 1970s
involving the HSCA in this litigation. See ECF No. 30 at 2–9. But Plaintiffs have not shown
that the CIA lacked candor here. Plaintiffs construe the CIA’s response to their statement of
material facts, in which the CIA responded to each alleged fact by saying, “Disputed. The
referenced document does not support the statement,” as untruthful. Id.; ECF No. 27-2
(Plaintiffs’ statement of material facts); ECF No. 28-1 (Defendant’s response to Plaintiffs’
statement of material facts). However, that the CIA disputes Plaintiffs’ characterizations of these
decades-old events—as well as Plaintiffs’ interpretations of the CIA’s own admissions about
them—is hardly grounds for the Court to conclude that the CIA has forfeited its presumption of
good faith.
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For these reasons, the Court holds that the CIA performed an adequate search of the
Directorate of Operations for records responsive to Plaintiffs’ Requests A, D, E, F, and G. Thus,
it will grant the CIA’s motion for summary judgment on those claims.
B. Personnel Records
The CIA searched its Human Resources record systems for personnel files of Plaintiffs
responsive to Request B. Second Supp’l Shiner Decl. ¶ 14. The Court previously found that the
search was adequate in almost all respects, but for the fact that the agency once again did not
affirmatively represent that “no other record system was likely to produce responsive
documents.” Hardway, 384 F. Supp. 3d at 78 (quoting Oglesby, 920 F.2d at 68). The Court
noted that it was especially hesitant to grant summary judgment without this information,
because Plaintiffs sought records from the 1970s which may not have been housed in the
electronic database the agency searched. Id. In its renewed motion, the CIA represents that
hard-copy personnel records from the 1970s would have been transferred to the National
Personnel Records Center within NARA “upon the employee’s separation from the agency,” but
that the human resources electronic system maintains “certain information” about former
employees for records purposes. Second Supp’l Shiner Decl. ¶¶ 14–15. Shiner explains that no
records of Plaintiffs were found in the electronic system, which “was the expected result of the
search, as the plaintiffs were never employees of the CIA (and do not claim to have been).” Id.
¶ 14. Because Plaintiffs were not CIA employees and no references to them were found in the
agency’s human resources database, Shiner avers that “there is no indication that any personnel
records pertaining to the plaintiffs were ever created (in hardcopy or electronic form), and “there
are no other CIA records systems that are reasonably likely to contain personnel files pertaining
to the plaintiffs.” Id. ¶ 15.
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In their cross-motion, Plaintiffs do not challenge the adequacy of the CIA’s search of its
personnel records. See generally ECF No. 27-1; ECF No. 30. And having received the CIA’s
explanation that it does not create personnel files for legislative branch employees who interact
with the CIA and its representation that “there are no other CIA records systems that are
reasonably likely to contain personnel files pertaining to the plaintiffs,” the Court is satisfied that
its search of its personnel files for records responsive to Request B fulfilled its obligations under
FOIA. Second Supp’l Shiner Decl. ¶ 15; Oglesby, 920 F.2d at 68. For these reasons, the Court
will grant the CIA’s motion for summary judgment with respect to Plaintiffs’ Request B.
C. Records of Search
Finally, Plaintiffs requested all records about the CIA’s search efforts relating to the other
categories of records they requested. Compl. ¶ 12. The parties dispute on this issue turns on the
search cut-off date used by the CIA. FOIA requires agencies to search for records only as of a
specific cut-off date. See Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S.
136, 152 (1980). The D.C. Circuit “has indicated that an agency must have a ‘compelling
justification for imposing a date-of-request cut-off on a particular FOIA request.’” Ctr. for
Biological Diversity v. EPA, 279 F. Supp. 3d 121, 141 (D.D.C. 2017) (quoting Pub. Citizen v.
Dep’t of State, 276 F.3d 634, 644 (D.C. Cir. 2002)). But courts in this Circuit have repeatedly
held that a date-of-search cut-off is reasonable. See id. (collecting cases).
The Court previously denied summary judgment as to Plaintiffs’ Request H because it
could not determine whether the CIA had used a date-of-request or date-of-search cutoff.
Hardway, 384 F. Supp. 3d at 79. Now, the CIA explains that it used the date it began its search
process as the cut-off date—and that its search “included multiple steps: (1) efforts to identify
file locations and record systems where responsive records may be located, (2) legal
consultations concerning requirements under FOIA pertaining to the scope of the CIA’s
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searches, (3) crafting search terms for use within electronic databases, (4) executing the searches
to locate and compile potentially responsive records, and (5) reviewing potentially responsive
records to determine whether individual records were actually responsive” to Plaintiffs’ request.
Second Supp’l Shiner Decl. ¶¶ 16–17. Thus, as the CIA argued in its initial motion for summary
judgment, it did not search for any such records because none could have existed at the moment
the search began. Id. ¶ 17.
Plaintiffs say this interpretation of “search” is too broad and argue that the CIA’s
approach would collapse any meaningful distinction between a date-of-search cutoff and a date-
of-receipt cutoff. See ECF No. 30 at 9–10. They are incorrect, insofar as there could well have
been a gap in time between when the CIA received the request and when it began its search
process. But they are right that the CIA’s approach would mean that here—where Plaintiffs have
requested records about the very process the agency undertook to respond to other components
of their FOIA request—the CIA would not have to search for any such records because by
definition, none could have existed when the “search” began. Instead, Plaintiffs say, the Court
should require the CIA to identify the dates when it actually ran search terms against its
databases, deem one of those the date the search occurred, and require the CIA to use that as the
cut-off date. Id.
But the ultimate question the Court must decide is merely whether the cut-off date used
by the CIA here was reasonable. See McClanahan v. U.S. Dep’t of Justice, 204 F. Supp. 3d 30,
47 (D.D.C. 2016). The Court finds that it was. First, for the reasons explained above, the CIA’s
cut-off date was not linked to the date of Plaintiffs’ request, but the commencement of its search
process, so under Circuit precedent the CIA need not show any “compelling justification” for it.
Pub. Citizen, 276 F.3d at 644; see Ctr. For Biological Diversity, 279 F. Supp. 3d at 141. And
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second, the cut-off date used by the CIA in this circumstance—that is, in connection with a
request for records about its own search process for records responsive to the same FOIA
request—accords with the general principle that the FOIA “does not obligate agencies to create
or retain documents; it only obligates them to provide access to those which it in fact has created
and retained.” Kissinger, 445 U.S. at 152. Any other approach could result in an end-run around
this rule by effectively requiring the CIA to create and retain records it might not have otherwise.
Another court in this District came to a similar conclusion in Schoenman v. FBI, 573
F. Supp. 2d 119 (D.D.C. 2008). In that case, a requestor similarly sought “copies of records
documenting the State Department’s search in response to his request.” Id. at 139. The agency
did not provide them because it deemed records created after the search for responsive records
was initiated outside the scope of the FOIA request. Id. The court agreed that approach was
reasonable. Id. at 140. To be sure, that case involved an agency regulation mandating that
“[d]ocuments which are created after the date the search for responsive records is initiated[ ] are
deemed outside the scope of plaintiff's FOIA request,” and in this case, in urging that its
approach was reasonable, the CIA relies on no such regulation. Id. at 139. But the court also
held that the plaintiff’s request conflicted with the purposes and requirements of the FOIA, in
particular, that the statute does not require agencies to “create or maintain” documents. Id. at
140. And, implicitly, it adopted the CIA’s position here that a search can reasonably be
considered a process—and not merely the moment when search terms are applied to a particular
database—when it blessed the agency’s refusal to search for “documentation that may or may
not exist but which, in any event, was created during the course of searching for records
responsive to Plaintiff’s FOIA request.” Id. (emphasis added).
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For these reasons, the Court will grant summary judgment for the CIA as to Request H.
Of course, the CIA has now completed processing the Plaintiffs’ request and there may well be
documents it has created and retained that are responsive to Request H. Plaintiffs are free to file
a new FOIA request for any such documents.
Conclusion
For all the above reasons, Defendant’s Renewed Motion for Summary Judgment, ECF
No. 25, will be granted and Plaintiffs’ Cross-Motion for Summary Judgment, ECF No. 27, will
be denied. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: April 18, 2020
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