Jarvik v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAURENCE JARVIK, :
:
Plaintiff, : Civil Action No.: 08-1911 (RMU)
:
v. : Re Document Nos.: 13, 17
:
CENTRAL INTELLIGENCE AGENCY, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION FOR LEAVE
TO FILE A VAUGHN DECLARATION IN CAMERA
I. INTRODUCTION
The plaintiff submitted a Freedom of Information Act (“FOIA”) request to the Central
Intelligence Agency (“CIA”) seeking to obtain “CIA reports relating to the violence [in Andijan,
Uzbekistan] of May, 2005 and its aftermath, as well as subsequent trials and evacuation of
refugees.” The CIA refused to produce any information responsive to the plaintiff’s request,
claiming that the information was exempt from production under the FOIA. The matter is now
before the court on the CIA’s motion for summary judgment and motion requesting leave to file
in camera a Vaughn declaration. For the reasons discussed below, the court grants both of the
CIA’s motions.
II. FACTUAL & PROCEDURAL BACKGROUND
On February 15, 2006, the plaintiff submitted a request to the CIA for “information or
records on all CIA documents about events in Andijan, Uzbekistan from 2004-2006, including
any CIA reports relating to the violence of May, 2005 and its aftermath, as well as subsequent
trials and evaluation of refugees” (“the initial request”). 1 Am. Compl. ¶ 6; Def.’s Mot. for
Summ. J. (“Def.’s Mot.”), Ex. A. A few weeks later, on March 6, 2006, the CIA responded that
it could not “process the first part of [his] request – CIA documents about events in Andijan,
Uzbekistan, from 2004-2006” due to its lack of specificity, but it offered to conduct a search for
documents responsive to “the second part of [his] request – CIA reports relating to the violence
of May 2005 and its aftermath, as well as subsequent trials and evaluation of refugees – since it
deals with a specific event.” Am. Compl. ¶ 8; Def.’s Mot., Ex. B. The plaintiff agreed to the
CIA’s proposal in a letter on March 22, 2006 (“the amended request”). Def.’s Mot., Ex. C.
In March 2008, the plaintiff informed the CIA that he was ready to pay the required fees
necessary to move forward with his FOIA request. Am. Compl. ¶¶ 16-18. After receiving no
response from the CIA, the plaintiff filed suit in this court on November 5, 2008. Am. Compl. ¶¶
19-20. The CIA states that it “accepted” the plaintiff’s amended request on January 14, 2009.
1st Dimaio Decl. ¶ 5. On January 15, 2009, the court granted the parties’ joint motion to stay the
proceedings until May 11, 2009, in order to allow the CIA time to “provide the plaintiff with any
and all releasable CIA records responsive to his [February 15, 2006] FOIA request (as that
request was modified by the plaintiff’s letter dated [March 22, 2006]).” Minute Order (January
15, 2009).
On March 24, 2009, the CIA provided a “final response” to the plaintiff’s amended
request. Id., Ex. B. The CIA explained that it had “located material which [it] had determined is
currently and properly classified and must be denied in its entirety on the basis of FOIA
1
The plaintiff sought an exemption from any fees associated with searching for and reproducing
the requested information. Jarvik v. Cent. Intelligence Agency, 495 F. Supp. 2d 67, 69 (D.D.C.
2007). After the CIA denied his request, the plaintiff appealed, ultimately filing suit in this court.
Id. at 69-70. This court, in a separate case, held that the plaintiff was not entitled to a fee waiver.
Id. at 74.
2
exemptions (b)(1) & (b)(3).” Id. The plaintiff administratively appealed this decision but did
not receive a decision within the required timeframe. 2 Am. Compl. ¶¶ 26-7.
The CIA subsequently filed a motion for summary judgment, see generally Def.’s Mot.,
relying on the unclassified declaration of Ralph Dimaio, an Information Review Officer with the
CIA. 3 Id., 1st Dimaio Decl. The CIA also filed a motion for leave to file in camera a classified
Vaughn 4 declaration by Diamio. See Def.’s Mot. to File Its Vaughn Declaration In camera
(“Def.’s Mot. to File In camera”). In support of its motion to file in camera, the CIA filed a
second unclassified declaration by Dimaio. See Def.’s Reply in Support of Its Mot. to File In
camera, 2d Dimaio Decl. With the defendant’s motion for summary judgment and motion for
leave to file in camera now ripe for adjudication, the court turns to the applicable legal standards
and the parties’ arguments.
2
If an agency fails to answer a FOIA request within twenty days, FOIA deems the requester to
have constructively exhausted his administrative remedies and permits immediate judicial review.
5 U.S.C. § 552(a)(6)(C); Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003)
(citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)).
3
Unsworn declarations, subscribed by the declarant as true under penalty of perjury, may be
substituted for affidavits. 28 U.S.C. § 1746; Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994); see also Casillas v. Dep’t of Justice, 672 F. Supp. 2d 45, 49 (D.D.C. 2009) (stating that
“federal law expressly permits the use of declarations without notarization”).
4
An agency claiming exemptions under FOIA must provide “an analysis sufficiently detailed” in
support of any claimed exemptions. Vaughn v. Rosen, 484 F.2d at 820, 827 (D.C. Cir. 1973).
This analysis, submitted as part of a “Vaughn index” or “Vaughn declaration,” allows “the court
to evaluate the legitimacy of the withholding of information without having to physically
examine each of the documents on which withheld information is contained.” Dorsett v. U.S.
Dep’t of Treasury, 307 F. Supp. 2d 28, 34 (D.D.C. 2004).
3
III. ANALYSIS
A. The Court Grants the Defendant Leave to File its Vaughn Declaration In camera
1. Legal Standard for In Camera Filing
District courts have “the explicit authority to conduct in camera reviews of agency files
to determine the applicability of the claimed [FOIA] exemptions.” Quinon v. Fed. Bureau of
Investigation, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (discussing Congress’ 1974 amendments to
FOIA, which expressly authorized in camera review). The court should not, however, resort to
an in camera review as a matter of course. Quinon, 86 F.3d at 1227-28 (citing S. Conf. Rep. No.
1200, 93d Cong., 2d Sess. 9 (1974)). Instead, the court should first provide the government with
an “opportunity to establish by means of testimony or detailed [public] affidavits that the
documents are clearly exempt from disclosure.” Id. (citing S. Conf. Rep. No. 1200, 93d Cong.,
2d Sess. 9 (1974)). “[T]he court is to require the agency to create as full a public record as
possible, concerning the nature of the documents and the justification for nondisclosure.”
Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1383 (D.C. Cir. 1979). But where the public
affidavits are insufficiently detailed to permit meaningful review of exemption claims, “the court
may accept classified affidavits [i]n camera or it may inspect the documents [i]n camera.”
Hayden, 608 F.2d at 1384.
2. The Defendant’s In camera Filing of a Vaughn Declaration is
Necessary and Appropriate
The defendant requests leave to file its Vaughn declaration in camera because it “could
not provide an adequate explanation of its search and withholdings without revealing information
that is classified, or that reasonably could be expected to lead to the discovery of classified
information.” Def.’s Mot. to File In Camera, at 2-3. The plaintiff argues that the defendant has
4
not disclosed any material whatsoever 5 and has failed to submit a sworn statement “explaining
why the Vaughn declaration has to be classified or explaining how the release of a declaration
can lead to discovery of classified information.” Pl.’s Opp to Def.’s Mot. to File In camera at 2.
The plaintiff further argues that the adversarial process would be severely limited if this court is
forced to determine whether the defendant’s search of its records was adequate without the
benefit of the plaintiff’s analysis, which the court would not receive if it allows the Vaughn
declaration to be filed in camera. Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 3.
The defendant responds that it has, in its first unclassified declaration, “explain[ed] its
search and withholdings to the greatest extent possible without disclosing either classified
information or information that reasonably could be expected to lead to the disclosure of
classified information.” Def.’s Reply in Support of Mot. to File In camera at 1; see also id., 2d
Dimaio Decl. ¶ 3. The defendant explains that it cannot release a redacted version of the
information because it can “neither enumerate nor describe the responsive material in any way
without revealing classified information or impairing [the CIA’s] functions.” Id., 2d Dimaio
Decl. ¶ 3. According to the defendant, public disclosure of “the nature and type(s) of responsive
material, the date(s), the amount, volume, or extent of the responsive material in this case would
provide insight into how [the] CIA carries out its core functions of foreign intelligence
collection, production and use of intelligence sources and methods, including the extent of [the]
CIA’s intelligence interest in a particular subject matter.” Id. Thus, the defendant asserts that it
should be permitted to file an in camera classified declaration “to avoid damage to the national
security and to [the] CIA’s functions,” while also ensuring that the court has the information
5
The plaintiff’s concern as to the absolute lack of responsive material provided by the defendant is
addressed in the court’s discussion on the segregability of the responsive material(s). See infra
Part III.B.4.b.
5
necessary to conduct a meaningful review of its actions in response to the plaintiff’s FOIA
request. Id. ¶ 4.
The Circuit has acknowledged that an in camera review “deprives the FOIA requester of
an opportunity to present his interpretation of the withheld documents.” Quinon, 86 F.3d at
1228. Nevertheless, “[i]n a limited range of security cases, it is simply not possible to provide
for orderly and responsible decisionmaking about what is to be disclosed, without some sacrifice
to the pure adversary process.” Hayden, 608 F.2d at 1385.
The Circuit has held that if a public record, after having been developed to its full extent,
is insufficient for the district court to rule on the lawfulness of the agency’s nondisclosure, then
a “[district] court may accept classified affidavits [i]n camera.” Id. at 1384. In Hayden, the
district court allowed for in camera review of a classified affidavit detailing why requested
documents could not be released under FOIA. Id. at 1383. Relying on that review, the district
court granted summary judgment to the agency. Id. In affirming the district court’s ruling, the
Circuit noted that it was “appropriate to receive affidavits [i]n camera rather than in public” in
circumstances where the district court “could reasonably find that public itemization and detailed
justification would compromise legitimate secrecy interests.” Id. at 1385.
Although the court is sensitive to the plaintiff’s concerns regarding the limitations to the
adversarial process that result from in camera filings, the court is persuaded that there is a
reasonable chance of harm to both national security and the CIA if any additional information is
revealed on the public record. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981) (deferring to the agency’s assertions in holding that the information could cause serious
damage to the national security); 2d Dimaio Decl. ¶¶ 3-4. Here, the CIA indicates that
revealing even the number of CIA originated records responsive to the Plaintiff’s
FOIA request, indeed whether the CIA located one or more than one record, and
6
additional information contained in a Vaughn index would disclose information
about the nature and scope of the CIA’s record material and necessarily would
reveal the extent to which the CIA collected or did not collect information and/or
prepared or did not prepare analysis on the events that are the subject of the
Plaintiff’s FOIA request, which in turn would reveal sensitive intelligence
capabilities and interests (or lack thereof), in addition to a number of other pieces
of information that could reasonably be expected to cause serious damage to the
national security. 6
1st Dimaio Decl. ¶ 8.
After reviewing the defendant’s classified and unclassified declarations, the
court concludes, as did the court in Hayden, that “public itemization and
detailed justification” could compromise legitimate intelligence and national
security interests. 7
See Hayden, 608 F.2d at 1385 (declining to require a Vaughn index because doing so would
force the agency to reveal sensitive information). Accordingly, the court determines that the
present case is one where “some of the interests of the adversary process are outweighed by the
nation’s legitimate interests in secrecy and orderly process,” and declines to demand a more
public record despite the fact that it must now do “without full benefit of adversary comment on
a complete public record.” Hayden, 608 F.2d at 1385.
6
The CIA also explains that for these same reasons a Vaughn index could not be prepared in this
case. First Unclassified Dec. ¶ 8. Although the plaintiff does not specifically contest the
defendant’s failure to submit a Vaughn index, see generally Pl.’s Opp’n, the court notes that a
Vaughn index is not necessary if it “could cause the very harm that [the exemption] was intended
to prevent,” Linder v. Nat’l Security Agency, 94 F.3d 694, 697 (D.C. Cir. 1996), or “where there
are no responsive records to describe in a Vaughn index,” Casillas, 672 F. Supp. 2d at 48.
7
The plaintiff also argues that the CIA is disingenuous in claiming national security concerns as
justification for not providing a more detailed public declaration and refers the court to an
allegedly more detailed public declaration that was provided in an unrelated, high-profile matter.
Pl.’s Opp’n at 2 (discussing a declaration in “a case [that] deals with information about High
Value Detainees held at Guantanamo Bay. . . and people the CIA claims have provided valuable
information which helped prevent eminent terrorist attacks”). Because every case presents a
unique set of facts and because the CIA is in a better position than this court to address what
information can be revealed to the public in a declaration without causing harm to the national
security, see Military Audit Project, 656 F.2d at 738, the court declines to make the type of
comparative judgment that the plaintiff’s argument invites.
7
Additionally, the court cannot meaningfully review the CIA’s response to the plaintiff’s
request based on the current public record. The plaintiff concedes that the defendant’s first
unclassified declaration is “meaningless” and “mostly a collection of legal arguments and
conclusory statements.” Pl.’s Opp’n at 3. Because the court cannot meaningfully review the
defendant’s actions based on the current public record, see Hayden, 608 F.2d at 1384, and
because the court is persuaded that the CIA cannot provide further information on the public
record due to the reasonable chance that the release of such information may cause harm to the
national security and the CIA’s functions, see 2d Dimaio Decl. ¶ 3; Military Audit Project, 656
F.2d at 738, the court grants the defendant’s motion for leave to file its Vaughn declaration in
camera.
B. The Court Grants the Defendant’s Motion for Summary Judgment
1. Legal Standard for Summary Judgment in FOIA Cases
Summary Judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1995). In deciding whether there is a genuine issue
of material fact, the court is to view the record in the light most favorable to the party opposing
the motion, giving the non-movant the benefit of all favorable inferences that can be reasonably
be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of
material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which
facts are “material,” a court must look to the substantive law on which each claim rests.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is one whose
8
resolution could establish an element of a claim or defense and, therefore, affect the outcome of
the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
FOIA affords the public access to virtually any federal government record that FOIA
itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d
820, 823 (D.C. Cir. 1973). FOIA confers jurisdiction on the federal district courts to order the
release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial
review of an agency’s response to a FOIA request, the defendant agency has the burden of
justifying nondisclosure, and the court must ascertain whether the agency has sustained its
burden of demonstrating that the documents requested are exempt from disclosure under FOIA.
Id.; Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v.
Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency may meet this burden by
providing the requester with a Vaughn index, adequately describing each withheld document and
explaining the exemption’s relevance. Summers, 140 F.3d at 1080; Vaughn, 484 F.2d 820(fashioning what is now commonly referred to as a “Vaughn index”).
The court may grant summary judgment to an agency on the basis of its affidavits if they:
[(a)] describe the documents and the justifications for nondisclosure with
reasonably specific detail; [(b)] demonstrate that the information withheld
logically falls within the claimed exemption, and [(c)] are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.
Military Audit Project, 656 F.2d at 738.
2. The Defendant Conducted an Adequate Search
a. Legal Standard for FOIA Adequacy of Agency Search
A requester dissatisfied with an agency’s response to his FOIA request may challenge the
adequacy of the agency’s search by filing a lawsuit in the district court after exhausting any
administrative remedies. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.
9
1999). To prevail on summary judgment, “the agency must demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine,
Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (internal quotations and
citations omitted). An agency must search for documents in good faith, using methods that are
reasonably expected to produce the requested information. Valencia-Lucena, 180 F.3d at 326
(citing Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The principle issue is
not whether the agency’s search uncovered responsive documents, but whether the search was
reasonable. Oglesby, 920 F.2d at 67 n.13 (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.
Cir. 1986)); Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). The agency need not search
every record in the system or conduct a perfect search. SafeCard Servs., Inc. v. Sec. & Exch.
Comm’n, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d at 952, 956. Nor need the
agency produce a document if “the agency is no longer in possession of the document [] for [a]
reason that is not itself suspect.” SafeCard Servs., 926 F.2d at 1201.
Instead, to demonstrate reasonableness, the agency must set forth sufficient information
in affidavits for the court to determine, based on the facts of the case, that the search was
reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). While an
agency’s affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with
evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evidence cannot be
comprised of “purely speculative claims about the existence and discoverability of other
documents.” Id. If the record raises substantial doubts regarding the agency’s efforts,
“particularly in view of well defined requests and positive indications of overlooked materials,”
summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326 (internal quotations
and citations omitted).
10
b. The Defendant’s Search Was Reasonable
The CIA asserts that its search was reasonably calculated to uncover all relevant
documents responsive to the plaintiff’s amended FOIA request. Def.’s Mot. at 6. The plaintiff
counters that the CIA’s search was inadequate as evidenced by its failure to disclose certain
documents that had been made available to the plaintiff by the Department of State and which,
according to the plaintiff, “were sent by the Department of State to CIA.” Pl.’s Opp’n at 3. The
plaintiff argues that the availability of the Department of State’s documents, as well as “the fact
that it took action by a federal court to force [the] CIA to produce any response to plaintiff’s
request,” demonstrates that the CIA’s bad faith. Id. at 3 n.2. Finally, the plaintiff accuses the
CIA of unilaterally narrowing his request, i.e. the plaintiff sought “documents” and alleges the
CIA searched only for “reports.” Id. at 3. Although the plaintiff acknowledges that he accepted
the amended request, he argues that at the time “he understood [it] to be a narrowing quite
different than the eviscerating construction now advanced.” Id. at 4.
In its reply, the CIA argues that the plaintiff “agreed to narrow the scope of his FOIA
request such that it plainly covers only records that originate with the CIA,” and that pursuant to
this narrower request, the CIA searched only CIA reports. Def.’s Reply at 4. Thus, the CIA
concludes that the non-production of Department of State records does not “impugn the
adequacy of the CIA’s search.” Id. at 5.
As a preliminary matter, the court must decide whether the plaintiff’s initial or amended
FOIA request is controlling. An agency can ask a FOIA requestor to clarify or narrow an overly
broad request. See Nation Magazine, 71 F.3d at 891-92 (holding that an agency is not required
to undertake a search that is so broad as to be unduly burdensome); Kenney v. U.S. Dep’t of
Justice, 603 F. Supp. 2d 184, 188 (D.D.C. 2009) (noting that an agency can ask a requester to
11
clarify the scope of a FOIA request “where a request is not specific enough to allow ‘a
professional employee of the agency who was familiar with the subject area of the request to
locate the record with a reasonable amount of effort’” (quoting Dale v. Internal Revenue Servs.,
238 F. Supp. 2d 99, 104 (D.D.C. 2002))).
Here, the CIA explained to the plaintiff that it “could not process the first part of [his]
request – [seeking] CIA documents about events in Andijan, Uzbekistan, from 2004-2006 – as
presented, given its lack of specificity.” Def.’s Mot., Ex. B. (emphasis added). The CIA offered,
however, to search for the second part of the plaintiff’s initial request, seeking “CIA reports
relating to the violence of May 2005 and its aftermath, as well as subsequent trials and
evaluation of refugees.” Id. (emphasis added). The plaintiff, despite his demonstrated ability to
utilize the CIA’s administrative appeal process, accepted the CIA’s offer to search for the
documents responsive to the narrowed request. Def.’s Mot., Ex. C.; see also Am. Comp. ¶ 8.
Had the plaintiff, as he now claims, wanted more than just “CIA reports,” he was entitled to
reject the CIA’s offer and appeal its decision to reject his initial FOIA request. See Wilson v.
U.S. Dep’t of Transp., 2010 WL 3184300, at *10 (D.D.C. Aug. 11, 2010) (holding that the
plaintiff, who agreed to narrow his FOIA request “cannot now argue that he meant something
else”); Kenney, 603 F. Supp. 2d at 189 (D.D.C. 2009) (stating that the “[p]laintiff cannot allege
that the agency failed to produce responsive records, when the records he now identifies falls
outside the scope of his appropriately narrowed request”). Thus, the court is not persuaded that
the CIA unilaterally “rewrote” and “twisted” the plaintiff’s request and will, accordingly, refer to
the amended FOIA request in evaluating whether the defendant’s search was reasonable.
The court determines whether the CIA’s search for documents was adequate by
evaluating “the reasonableness of the [the agency’s] effort in light of the specific request.’”
12
Larson v. U.S. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (quoting Meeropol v. Meese,
252 U.S. App. D.C. 381, 790 F.2d 942, 956 (D.C. Cir. 1986) (emphasis added)). The CIA was
“not obliged to look beyond the four corners of the request for leads to the location of responsive
documents.” Kowalczyk v. U.S. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); but cf.
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (requiring that an agency
expand the scope of its search if during the search the agency discovers information suggesting
the existence of documents elsewhere). The CIA’s failure, moreover, to produce a particular
document does not necessarily undermine the adequacy of a search. Lasko v. U.S. Dep’t of
Justice, 2010 WL 3521595, at *1 (D.C. Cir. Sept. 3, 2010) (holding that the failure to produce
particular documents does not undermine the adequacy of a search (citing Wilbur v. Cent.
Intelligence Agency, 355 F.3d 675, 678 (D.C. Cir. 2004))).
Here, the CIA construed the plaintiff’s request for “CIA reports” as a request for “records
that originate with the CIA.” Def.’s Reply at 4. This interpretation was reasonable under the
circumstances. The plaintiff’s initial request for “information or records on all CIA documents .
. . including any CIA reports” indicates that the plaintiff was mindful to distinguish between
records and reports. See Am. Compl. ¶ 6. Nonetheless, the plaintiff agreed to limit the scope of
the search from “information or records on all CIA documents” to “CIA reports.” See Def.’s
Mot., Ex. C. Both the “four corners of the [amended] request” and the plaintiff’s demonstrated
understanding as to the distinction between reports and records, support the conclusion that the
CIA reasonably interpreted the plaintiff’s amended request as one for “records that originate with
the CIA” and not for all agency records. See Kowalczyk, 73 F.3d at 389 (declining to interpret a
request as requiring all agency records where the plaintiff had not “clearly state[d] that he
want[ed] all agency records on [the] subject, i.e. regardless of their location,” and the agency had
13
reasonably interpreted the request to be for records in a specific office); id. (noting that an
“agency may reasonably interpret a request to be for records in a specific office,” and “upon
discovering that it has other responsive records elsewhere, it may reasonably infer that the
requester already has those records, is seeking them through a separate request, or, for whatever
reason, does not want them”). 8 The court, moreover, recognizes that it has the statutory
authority to enjoin agencies “from withholding agency records,” 5 U.S.C. § 552(a)(4)(B), and
that the Department of State documents obtained by the CIA are considered the CIA’s “agency
records.” McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1109 (D.C. Cir. 1983). As
discussed, however, the plaintiff here does not request the CIA’s agency “records,” instead
limiting his request to CIA “reports.” Thus, the court concludes that the defendant reasonably
construed the plaintiff’s amended request and that the CIA’s nondisclosure of the Department of
State documents is neither a “positive indication of overlooked materials” nor evidence of bad
faith. Cf. Valencia-Lucena, 180 F.3d at 326 (stating that summary judgment was not appropriate
where the reasonableness of the agency’s search was in doubt “particularly in view of well
defined requests and positive indications of overlooked materials” (internal quotations and
citations omitted)).
The plaintiff’s argument that the CIA’s bad faith is evidenced by “the fact that it took
action by a federal court to force [it] to produce any response to plaintiff’s request,” Pl.’s Opp’n
at 3 n.2., also lacks merit. The CIA states that it “accepted the [plaintiff’s] modified request on
14 January 2009, completed a search, and mailed a letter to the [p]laintiff notifying him of the
results on 24 March 2009.” 1st Dimaio Decl. ¶ 5. “[I]nitial delays in responding to a FOIA
8
Indeed, here it was plainly reasonably for the CIA to infer that the plaintiff was seeking the
Department of State records through a separate request because the plaintiff did, in fact, make
such a separate request. Pl.’s Opp’n at 3.
14
request are rarely, if ever, grounds for discrediting later affidavits by the agency.” Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citing Meeropol, 790 F.2d at
952 (D.C. Cir. 1986)); Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770,
772 (D.C. Cir. 1981); see also Goland v. Cent. Intelligence Agency, 607 F.2d 339, 355 (D.C. Cir.
1978) (stating that “in view of the well-publicized problems created by the statute’s . . . time
limits for processing FOIA requests and appeals, the CIA’s delay alone cannot be said to indicate
an absence of good faith”); Am. Fed’n of Gov’t Emp.v. Broad. Bd. of Governors, 2010 WL
1976747, at *7 (D.D.C. May 18, 2010) (rejecting “the plaintiffs’ arguments that defendant’s
failure to produce any documents until after litigation commenced is evidence of bad faith or an
inadequate search”). The court notes that approximately ten months elapsed between when the
plaintiff claims to have submitted his amended request to the CIA in March 2008, and when this
court ordered this case stayed as requested by the parties’ joint motion in January 2009. 9 See
generally Joint Mot. to Stay. In March 2009, three months after the parties requested a stay, the
CIA provided the plaintiff with a final response. Def.’s Mot., Ex. B. Neither the ten month
period from when the plaintiff’s submitted his amended request to the stay of judicial
proceedings nor the three month period that the CIA took to produce a response are alone
sufficient to indicate that the defendant acted in bad faith. See Iturralde, 315 F.3d at 315.
Having concluded that neither bad faith nor contradictory evidence is present, the court
need not question the veracity of the classified declaration, including the details concerning the
adequacy of the search provided therein. See Hayden, 608 F.2d at 1386 (holding that a district
court need not inquire into the veracity of a classified affidavit unless the information it provides
9
Due to the large volumes of requests submitted to federal agencies, “FOIA itself explicitly
contemplates the possibility of a stay at judicial proceedings at the district court level.”
Electronic Privacy Info. Ctr. v. U.S. Dept. of Justice, 2005 U.S. Dist. LEXIS 18876, at *7
(D.D.C. Aug. 31, 2005).
15
is insufficient or contradicted by the record, or there is evidence of bad faith on behalf of the
agency). The CIA’s classified affidavit, moreover, has provided sufficient details and facts to
support that its search was reasonable under the amended request. See generally Classified
Dimaio Decl.; see also Nation Magazine, 71 F.3d at 890 (requiring that an agency’s affidavit set
forth sufficient information for the court to determine whether a search is reasonable (citing
Oglesby, 920 F.2d at 68)); cf. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1122 (D.C.
Cir. 2007) (holding that an agency declaration was insufficient because it provided only “a
general explanation of how the agency responds to all FOIA requests” and did not “‘identify[]
the terms searched or explain[] how the search was conducted’” (quoting Oglesby, 920 F.2d at
68)). Accordingly, the court concludes that the CIA has demonstrated “beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine,
71 F.3d 885, 890 (D.C. Cir. 1995).
3. Exemption 1
a. Legal Standard for Exemption 1 Withholding
Exemption 1 of FOIA exempts from mandatory disclosure matters that are (1)
“specifically authorized under criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy” and (2) “are in fact properly classified pursuant to
such Executive order.” 5 U.S.C. § 552(b)(1). Information “must be classified in accordance with
the procedural criteria of the governing Executive Order as well as its substantive terms” in order
to be properly withheld under Exemption 1. Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 483
(D.C. Cir. 1980). Under Executive Order 12,958, an agency may not authorize information to be
kept secret unless, inter alia, the “disclosure of the information reasonably could be expected to
result in damage to the national security.” Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr.
16
17, 1995). An agency that withholds information pursuant to this exemption bears the burden of
justifying its decision. King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987) (citing
5 U.S.C. § 552(a)(4)(B)).
Courts review challenges to an agency’s decision to withhold information de novo. King,
830 F.2d at 217; 5 U.S.C. § 552(a)(4)(B). The court should conduct an in camera review of the
withheld information if the agency’s affidavits are insufficient to make the de novo
determination. Hayden, 608 F.2d 1381, 1384-88 (D.C. Cir. 1979). In reviewing an agency’s
invocation of an exemption, the court must consider that in enacting FOIA, Congress aimed to
strike a balance “between the right of the public to know what their government is up to and the
often compelling interest that the government maintains in keeping certain information private,
whether to protect particular individuals or the national interest as a whole.” American Civil
Liberties Union v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (citing John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989)).
The court is to “accord substantial weight to an agency’s affidavit concerning the details
of the classified status of the disputed record.” Military Audit Project, 656 F.2d at 738 (deferring
to the agency’s assertions in holding that the information could cause serious damage to the
national security); see also Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982). This
is especially true “in a national security case, in which the agency possesses necessary expertise
to assess the risk of disclosure,” Schlesinger v. Cent. Intelligence Agency, 591 F. Supp. 60, 67
(D.D.C. 1984), and judges “lack the expertise necessary to second-guess . . . agency opinions,”
Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C. Cir. 1980) (deferring to the
agency’s opinion and holding that certain CIA affidavits provided ample evidence to show
potential harm under a limited de novo review). If the court finds that the agency’s affidavits are
17
insufficiently detailed, it should deny summary judgment. Campbell, 164 F.3d at 31 (remanding
to the district court to allow the FBI to further “justify” its Exemption 1 claim because its
declaration failed to “draw any connection between the documents at issue and the general
standards that govern the national security exemption”), remanded to 193 F. Supp. 2d 29, 38
(D.D.C. 2001) (holding that a declaration was insufficient by merely concluding, without further
elaboration, that “disclosure of [the] information could reasonably be expected to cause serious
damage to national security”); Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1180 (D.C. Cir.
1996) (rejecting certain Vaughn indices as insufficient because agencies must itemize each
document and adequately explain “the connection between the information withheld and the
exemption claimed”); Oglesby, 920 F.2d at 66 n.12 (noting the detail required in public Vaughn
affidavits, especially in regard to an agency’s obligation to segregate and release nonexempt
material).
b. The Defendant Properly Invoked Exemption 1
The defendant argues that it justifiably withheld information pursuant to Exemption 1
because it followed the procedural and substantive requirements set forth in Executive Order
12,958. Def.’s Mot. at 6-8. The plaintiff counters that “there are myriad documents almost
certainly in the CIA’s possession, such as translation of public trials held in the aftermath of the
violence and translations of local media reports of the violence and ensuing trials, which are not
rightly classified.” Pl.’s Opp’n at 4.
The court has reviewed the classified and unclassified declarations to determine whether
the CIA satisfied the procedural and substantive requirements in withholding the information
under Exemption 1. Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (noting
that proper classification requires that both procedural and substantive requirements be met).
18
Procedurally, the unclassified declaration demonstrates that the classification of withheld
information has met the conditions outlined under Section 1.2(a) of the Executive Order. 1st
Dimaio Decl. ¶ 14. More specifically, the defendant determined that (1) the withheld
information is classified by “an original classified authority,” (2) the withheld information is
owned by, produced by, and under the control of the U.S. Government, (3) the withheld
information “falls within one or more of the categories in Section 1.4 of Executive Order 12958,
and (4) disclosure of the withheld information “reasonably could be expected to result in damage
to the national security.” Id. ¶¶ 9, 14-16; see 5 U.S.C. § 552(b)(1). Thus, the court concludes
that the CIA has met the procedural requirements needed to invoke Exemption 1.
Substantively, the CIA’s classified declaration describes in sufficient detail why the
withheld information “logically falls” within one of the classification categories outlined in
Section 1.4 of Executive Order. Hayden, 608 F.2d at 1387; see generally Classified Dimaio
Decl. The court need not inquire “further into [the classified declaration’s] veracity,” having
already determined that neither contradictory evidence nor bad faith was present. See supra Part
III.B.2.b; Hayden, 608 F.2d at 1387 (holding that the veracity of an agency’s affidavit need not
be questioned if no bad faith or contradictory evidence is found).
Although the plaintiff contends the CIA erred in classifying certain public documents or
documents relating to public events, he only provides a broad and speculative claim that “myriad
documents” exist which he believes should not be classified. Pl.’s Opp’n at 4. Such “purely
speculative claims about the existence and discoverability of other documents” are insufficient to
show that the CIA has incorrectly withheld classified information. See SafeCard Servs., Inc.,
926 F.2d 1197, 1200 (D.C. Cir. 1991). The court, moreover, is required to defer to the CIA’s
judgment with regard to the reasonable expectation that the disclosure of the withheld
19
information, even “seemingly innocent information” that has “already been made public,” could
result in damage to the national security. See Phillippi v. Cent. Intelligence Agency, 655 F.2d
1325, 1330 (D.C. Cir. 1981) (declining to hold that “revelation of seemingly innocent
information . . . is required under FOIA” because the information had already been made public
and deferring instead to “the well-documented and specific affidavits of the CIA to the
contrary”); Military Audit Project, 656 F.2d at 738 (rejecting the argument that “an agency’s
rationale for nondisclosure is inherently implausible simply because the information at issue
might already be a matter of public knowledge”). Thus, the court is not persuaded by the
plaintiff’s claim that public information was improperly classified. Accordingly, the court
concludes that the CIA has met both the procedural and substantive requirements of 5 U.S.C. §
522(b)(1) and properly invoked Exemption 1. 10
4. The Defendant Has Satisfied the Segregability Requirement
a. Legal Standard for Segregability Requirement
FOIA mandates that “any reasonable segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). By 1977, it had “long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). The D.C.
Circuit has made clear that “the ‘segregability’ requirement applies to all documents and all
exemptions in the FOIA.” Center for Auto Safety v. U.S. Envtl. Prot. Agency, 731 F.2d 16, 21
(D.C. Cir. 1984). In fact, the segregability requirement is so essential to a FOIA inquiry that “it
10
The defendant also invokes Exemption 3, codified at 5 U.S.C. § 552(b)(3), as a basis for
withholding information in response to the plaintiff’s amended request. Def.’s Mot. at 9.
Because the CIA seeks to withhold the same information under both Exemption 1 and Exemption
3, see id., and because the defendant has properly invoked Exemption 1, the court does not
consider whether the defendant properly invoked Exemption 3.
20
is error for a district court to simply approve the withholding of an entire document without
entering a finding on segregability, or the lack thereof.” Schiller v. Nat’l Labor Relations Bd.,
964 F.2d 1205, 1210 (D.C. Cir. 1992) (quoting Church of Scientology v. U.S. Dep’t of Army, 611
F.2d 738, 744 (9th Cir. 1979).
To demonstrate that the withholding agency has disclosed all reasonably segregable
material, “the withholding agency must supply a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those claims with
the particular part of a withheld document to which they apply.” King v. U.S. Dep’t of Justice,
830 F.2d 210, 224 (D.C. Cir. 1987) (internal quotations omitted). The agency, however, is not
required to provide so much detail that the exempt material effectively would be disclosed.
Mead Data, 566 F.2d at 261. Furthermore, conclusory language in agency declarations that do
not provide a specific basis for segregability findings by a district court may be found
inadequate. Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 301
(D.D.C. 1999). The Circuit, though expressly disclaiming any attempt to provide “an
encompassing definition of ‘conclusory assertions,’” noted that “it is enough that where no
factual support is provided for an essential element of the claimed privilege or shield, the label
‘conclusory’ is surely apt.” Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 585
(D.C. Cir. 1987).
b. The Agency Properly Segregated Exempt Material from Non-Exempt Material
The defendant argues that that the withheld information “is not appropriate for
segregation and disclosure” because
[t]o disclose [even] the amount of [responsive] material . . . or the date(s) of the
[responsive], would reveal sensitive information. The disclosure of such
21
seemingly innocuous information would reveal, among other things, the nature
and extent of the CIA’s interest in, and/or its ability to gather information
regarding, the subjects of Plaintiff’s FOIA request.
Def.’s Mot. at 11 (quoting 1st Dimaio Decl. ¶ 22 (alterations in original)). The defendant
provides additional explanations for the sensitivity of this information in Dimaio’s classified
declaration. See generally Classified Dimaio Decl. The plaintiff counters that he “has sufficient
evidence to show that [the d]efendant . . . did not attempt to segregate exempt from non-exempt
materials,” referring to the Department of State documents discussed above. Pl.’s Opp’n at 3;
see also supra Part III.B.2.b (discussing Department of State documents).
As a preliminary matter, the court has already concluded that the Department of State
documents did not fall in the scope of the plaintiff’s amended FOIA request. See supra Part
III.B.2.b. Therefore, contrary to the plaintiff’s position, the Department of State documents are
not evidence that would demonstrate that the defendant “did not attempt to segregate exempt
from non-exempt materials.” See Pl.’s Opp’n at 3.
The court must decide, nonetheless, whether the defendant was justified in not providing
any materials in response to the amended request. Morley, 508 F.3d at 1123 (stating that the
court has an affirmative duty to consider whether an agency has released all reasonably
segregable information). Ordinarily, an agency correlates each exemption it claims with a
particular portion of the document to which the exemption applies. Hall v. Cent. Intelligence
Agency, 668 F. Supp. 2d 172 (citing Schiller, 964 F.2d at 1209-10). Here, however, the
defendant states that giving any information regarding the results of its search, including
even the number of CIA originated records responsive to the Plaintiff’s FOIA
request . . . [or] whether the CIA located one or more than one record . . . would
reveal the extent to which the CIA collected or did not collect information and/or
prepared or did not prepare analysis on the events that are the subject of the
Plaintiff’s FOIA request, which in turn would reveal sensitive intelligence
capabilities and interests (or lack thereof).
22
1st Dimaio Decl. ¶ 8. The classified declaration provides further details as to why the CIA
cannot segregate portions of the responsive records. See generally Classified Dimaio Decl.
This Circuit has acknowledged that individual pieces of intelligence information, “much
like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the
individual piece is not of obvious importance itself.” Fitzgibbon v. Cent. Intelligence Agency,
911 F.2d 755, 763 (D.C. Cir. 1990) (citing Gardels v. Cent. Intelligence Agency, 689 F.2d 1100,
1106 (D.C. Cir. 1982). Through its unclassified and classified declarations, the defendant
provides a sufficiently detailed justification for the defendant’s determination that there is no
segregable material because all of the information is exempt. 1st Dimaio Decl. ¶¶ 8-10; 2d
Dimaio Decl. ¶¶ 3-4; See generally Classified Diamio Decl. Accordingly, the defendant has
satisfied its burden of establishing that no portion of the withheld documents can be segregated
and released to the plaintiff. 11 Juarez, 518 F.3d at 61.
5. Discovery is Not Warranted
The plaintiff requests discovery under Federal Rule of Civil Procedure Rule 56(f) 12
arguing that discovery is necessary to so he can learn “why the CIA is treating Plaintiff’s request
differently than far more sensitive requests from others.” Pl.’s Opp’n, Decl. of Pl.’s Counsel ¶ 3.
Additionally, the plaintiff seeks to depose the CIA’s declarant concerning
the basis for his personal knowledge as to the contents of his declaration, the
CIA’s construction of [the plaintiff’s] request, the scope and steps taken to search
11
The court is also not required to inspect the withheld information in camera to determine the
segregability of the requested information because “[t]he Agency’s rationale for nondisclosure . .
. applied to any and all information from the requested documents.” Hayden, 608 F.2d at 1388.
12
Under Rule 56(f), a court “may deny a motion for summary judgment or order a continuance to
permit discovery if the party opposing the motion adequately explains why, at that timepoint, it
cannot present by affidavit facts needed to defeat the motion.” Strang v. U.S. Arms Control &
Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed. Bureau of
Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981).
23
for documents by the defendant and the fact and extent of the CIA’s possession of
information from third parties that it has summarized and withheld, if any.
Id. ¶ 2. The defendant responds that discovery would be inappropriate because “the CIA
has already provided the plaintiff with all of the information that it can . . . [and t]o
provide any additional information would be to disclose classified information.” Def.’s
Reply at 6.
Generally, “[d]iscovery in FOIA is rare and should be denied where an agency’s
declarations are reasonably detailed, submitted in good faith and the court is satisfied that no
factual dispute remains.” Schrecker v. Dep’t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002),
aff’d, 349 F.3d 657 (D.C. Cir. 2003); see also Judicial Watch, Inc. v. Dep’t. of Justice, 185 F.
Supp. 2d 54, 65 (D.D.C. 2002) (noting that “[d]iscovery is not favored in lawsuits under the
FOIA”). Only if the agency has not undertaken an adequate search for responsive documents is
discovery appropriate. Schrecker, 217 F. Supp. 2d at 35. Discovery is not warranted “when it
appears that discovery would only . . . afford [the plaintiff] an opportunity to pursue a bare hope
of falling upon something that might impugn the affidavits.” Military Audit Project, 656 F.2d at
751-52 (internal quotations omitted); see also Broaddrick v. Executive Office of the President,
139 F. Supp. 2d 55, 63-64 (D.D.C. 2001). Where an agency’s affidavits regarding its search are
sufficient, the judge has broad discretion to forgo discovery. Meeropol, 790 F.2d at 960-61; see
also Schleeper v. U.S. Dep’t of Justice, 1999 WL 325515, at *1 (D.C. Cir. April 30, 1999) (per
curiam) (upholding lower court’s denial of discovery). Even if an agency’s affidavits regarding
its search are deficient, courts generally do not grant discovery but instead direct the agency to
supplement its affidavits. Judicial Watch, 185 F. Supp. 2d at 65.
As has already been discussed, see supra Part III.B.2.b., the CIA did not act in bad faith.
See Hall, 668 F. Supp. 2d 172, 196 (D.D.C. 2009) (denying discovery because the court could
24
not infer from the record before it that the agency had acted in bad faith). Additionally, the
plaintiff requests to depose the declarant to determine “the basis of his personal knowledge.”
Pl.’s Opp’n, Counsel Decl. ¶ 3. Ordinarily, however, a declarant who holds a supervisory
position overseeing FOIA requests is deemed to have personal knowledge of a search. Carney v.
U.S. Dep't of Justice, 19 F.3d 807, 814 (2d Cir.1994) (stating that “[a]n affidavit from an agency
employee responsible for supervising a FOIA search is all that is needed to satisfy [the personal
knowledge requirement of Federal Rule of Civil Procedure] 56(e)”); see also Kay v. Fed.
Commc’ns Comm’n, 976 F. Supp. 23, 34 n.29 (D.D.C. 1997) (stating that “[g]enerally,
declarations accounting for searches of documents that contain hearsay are acceptable”), aff’d,
172 F.3d 919 (D.C. Cir. 1998). Here, the declarant is the Information Review Officer for the
National Clandestine Service of the CIA, 1st Unclassified Decl. ¶ 1, and thus, the court sees no
reason for discovery to ascertain the declarant’s personal knowledge of the search.
Lastly, the CIA has stated that “the only response [that it] can provide on the public
record in this case is the general, ‘no number, no list’ declaration,” because revealing anything
more “could reasonably be expected to cause serious damage to the national security.” Def.’s
Mot., 1st Dimaio Decl. ¶ 8. In such a situation, the court need only review the CIA’s declaration,
see Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir. 1974) (stating that
“[w]hen the [a]gency’s position is that it can neither confirm nor deny the existence of the
requested records, there are no relevant documents for the court to examine other than the
affidavits which explain the [a]gency’s refusal”), and if the court finds that “an agency’s
declarations are reasonably detailed, submitted in good faith and the court is satisfied that no
factual dispute remains,” then discovery should be denied, Casillas v. U.S. Dep’t of Justice, 672
F. Supp. 2d 45, 49 (D.D.C. 2009) (citing Schrecker v. Dep't of Justice, 217 F. Supp. 2d 29, 35
25
(D.D.C. 2002)). Accordingly, the court denies the plaintiff’s request for discovery.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion for summary judgment
and grants leave to the defendant to file in camera its Vaughn declaration. An Order consistent
with this Memorandum Opinion is separately and contemporaneously issued this 28th day of
September, 2010.
RICARDO M. URBINA
United States District Judge
26