Whitaker v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN WHITAKER,
Plaintiff,
v.
Civil Action No. 12-316 (CKK)
CENTRAL INTELLIGENCE AGENCY,
et al.,
Defendant.
MEMORANDUM OPINION
(March 10, 2014)
Plaintiff Stephen Whitaker has filed suit against Defendants the Central Intelligence
Agency, the United States Department of Defense, and the United States Department of State
challenging Defendants’ processing of his requests pursuant to the Freedom of Information Act
and the Privacy Act. Presently before the Court is Defendants’ [5] Motion for Summary
Judgment. Upon consideration of the pleadings 1, the relevant legal authorities, and the record as
a whole, the Court GRANTS IN PART and DENIES IN PART Defendants’ [5] Motion for
Summary Judgment. Specifically, the Court GRANTS Defendants’ motion with respect to (1)
Plaintiff’s claims against Defendant Department of Defense, (2) Defendant CIA’s invocation of
FOIA Exemption (b)(5), (3) the adequacy of Defendant State Department’s search with respect
to its failure to locate records in the Office of Passport Services, (4) Defendant State
Department’s failure to process Plaintiff’s requests for his father’s records under the Privacy Act,
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Complaint, ECF No. [1] (“Compl.”); Defs.’ Mot. for Summ. J., ECF No. [5] (“Defs.’
MSJ”); Errata, ECF No. [11]; Pl.’s Opp’n to Defs.’ Mot. for Summ. J., ECF No. [14-1] (“Pl.’s
Opp’n”); Defs.’ Reply Mem. in Supp. of Defs.’ Mot. for Summ. J., ECF No. [20] (“Defs.’
Reply”); Notice of Supplemental Authority, ECF No. [21]; Notice of Filing Document for In
Camera Review, ECF No. [23].
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(5) Defendant State Department’s invocation of Exemption (b)(5), and (6) Defendant State
Department’s invocation of Exemption (b)(6). The Court DENIES WITHOUT PREJUDICE
Defendants’ motion with respect to (1) Defendant CIA’s invocation of FOIA Exemption (b)(3)
pursuant to the CIA Act of 1949 and the National Security Act of 1947, and (2) the adequacy of
Defendant State Department’s search with respect to its failure to search for records regarding
Major Lawrence Eckmann.
I. BACKGROUND
A. Factual Background
Between January 2008 and January 2012, Plaintiff filed a series of requests with
Defendants pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the
Privacy Act, 5 U.S.C. § 552a. These requests sought records pertaining to the disappearance of a
DC-3 airplane, three other planes, Harold Whitaker (Plaintiff’s father) and four other individuals,
the United States Army’s investigation into the disappearance of the plane, the Plaintiff himself,
and the Plaintiff’s previous FOIA requests. The details of these requests are set out below.
1. CIA
On February 15, 2010, Plaintiff sent a FOIA request to the CIA requesting information
“relat[ing] in any way to five individuals,” including Plaintiff’s father, Harold W. Whitaker, and
“four DC-3 aircraft.” See Defs.’ MSJ, Ex. A (Declaration of Martha M. Lutz, Information
Review Officer, Director’s Area, Central Intelligence Agency) (“Lutz Decl.”) ¶ 9; Compl. at 5.
Plaintiff defined the scope of his request to include any information that would reveal whether
“any of these persons or aircraft were later found to be employed or contracted by the CIA for
service in Central America or elsewhere.” Lutz Decl. ¶ 9. The CIA acknowledged and
responded to this request by letter on February 24, 2010, assigning to the request Reference
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Number F-2010-00611. Id. ¶ 10. In this letter, Defendant CIA issued a Glomar response,
refusing to confirm or deny the existence or non-existence of records responsive to Plaintiff’s
request. Id.; see also Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (affirming CIA’s
use of the “neither confirm nor deny” response to a FOIA request for records concerning CIA’s
reported contacts with the media regarding Howard Hughes’ ship, the “Hughes Glomar
Explorer”). Plaintiff appealed the CIA’s Glomar response in a letter dated April 8, 2010, and the
CIA’s Agency Release Panel denied the appeal on June 27, 2011. Lutz Decl. ¶¶ 11, 13.
On March 24, 2011, Plaintiff sent a second request to the CIA under the FOIA and the
Privacy Act, requesting “all records about [Plaintiff] and [Plaintiff’s] father indexed to
[Plaintiff’s] or [Plaintiff’s] deceased father’s name.” Id. ¶ 14. Defendant CIA separated the
requests pertaining to each individual and assigned the request for information pertaining to the
Plaintiff as Request No. P-2011-00460. Id. ¶ 15. The CIA’s search for records that might reflect
an open Agency affiliation or otherwise acknowledge Agency affiliation existing through March
30, 2011 yielded no responsive records. Id. The CIA also asserted a Glomar response regarding
any records that might “reveal a classified connection to the CIA.” Id. Defendant appealed the
adequacy of Defendant CIA’s search and its Glomar response on May 12, 2011, and the CIA
accepted this appeal on August 19, 2010. Id. ¶¶ 16, 20. In response to Plaintiff’s appeal, the
CIA searched its repository of records containing information about FOIA requests (CIA-14) and
searched for any responsive records relating to the Plaintiff’s FOIA requests predating March 30,
2011 – the date the CIA received and accepted Plaintiff’s appeal. Id. ¶¶ 81-85.
Because the part of Plaintiff’s second FOIA request to Defendant CIA requesting
information pertaining to Harold W. Whitaker was duplicative of the request in No. F-2010-
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00611, it was incorporated into the processing of that earlier request, which was on appeal at the
time. Id. ¶ 16.
2. Department of Defense
On November 19, 2009, Plaintiff submitted a FOIA request to the United States Air
Force (“USAF”) for records “relating to the Ramstein US Air Force search for missing aircraft,
beginning 3 October 1980 for a DC-3 departed [sic] Cuatro Vientos Airport in Madrid Spain for
destination Frankfurt, waypoint Perpignon France.” The scope of the request included any
referrals to or inquiry of the Federal Bureau of Investigation (“FBI”), the International Criminal
Police Organization (“INTERPOL”), or other agencies, as well as any subsequent search efforts
or investigations. See Defs.’ MSJ, Ex. B (Declaration of Valerie Bufano, FOIA Manager,
Ramstein Air Force Base, United States Air Force) (“Bufano Decl.”) ¶¶ 4, 6; Comp, at 9.
The request was assigned Request No. 2010-01041-F. Bufano Decl. ¶ 4. The Ramstein
FOIA Office forwarded the request to the Ramstein Safety office (“86 AW/SEG”), the HQ
Safety Center FOIA Office (“HQ AFSC/JAR”) at Kirkland Air Force Base, the 435 Air Ground
Operations Wing Office (“435 AGOW/HO”), the Air Force Office of Special Investigations
Headquarters (“HQ AFOSI”), the USAF Europe Safety Office (“USAFE/SEF”), the USAF
Europe History Office (“USAFE/HO”), and the USAF Europe Legal Office, Administrative Law
Branch. Each of these offices searched their files and discovered no records responsive to
Plaintiff’s request. Id. ¶¶ 6-13. On September 17, 2010, the Ramstein USAF Base closed the
request and informed Plaintiff that no responsive records were located. Plaintiff did not appeal
the adequacy of Defendant’s search. Bufano Decl. ¶ 4; Compl. at 9.
On August 15, 2011, Plaintiff resubmitted Request No. 2010-01041-F to the USAF; the
new request was designated Request No. 2011-06326-F. Compl. at 9; Bufano Decl. ¶ 4. The
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USAF denied the second request on August 16, 2011 as duplicative of the earlier request. Id.
Plaintiff appealed the denial on August 19, 2011 and the appeal was denied on the same
“duplicate” basis.
On May 23, 2011, the U.S. Army Human Resources Command (“HRC”) received
Plaintiff’s FOIA/PA request, which was forwarded to it from the Army’s FOIA Office. See
Defs.’ MSJ, Ex. C (Declaration of Michael Coen, Information Release Specialist, HRC, United
States Army) (“Coen Decl.”) at ¶ 5. The request on behalf of Plaintiff sought “[c]opies of all
U.S. Army records about his father, Harold Whitaker . . . and the investigation into his
disappearance in the DC-3 aircraft over Spain on 3 October 1980, along with Lawrence J.
Eckmann, a Major in the U.S. Army.” Id. HRC records were searched in the Total Army
Personnel Database/Soldier Management System, which “maintains the Official Military
Personnel Files for all Active Duty members of the United States Army and those individuals
who have recently been separated.” Id. ¶ 6. HRC used the names Harold William Whitaker and
Lawrence J. Eckmann as well as the social security number provided for Harold Whitaker, but
no responsive records were located. Id. Plaintiff was notified of the search results in writing on
May 24, 2011. Id.
On June 8, 2011, the U.S. Army Criminal Investigation Command (“USACIDC”) Crime
Record Center (“CRC”) received Plaintiff’s FOIA request, which was forwarded to it from the
Army’s FOIA office. See Defs.’ MSJ, Ex. D (Declaration of Michelle Kardelis, Chief of the
Freedom Information Act and Privacy Act Division, USACIDC CRC, United States Army)
(“Kardelis Decl.”) at ¶ 5. The USACIDC searched its files for records relating to Harold W.
Whitaker and Lawrence J. Eckmann (Whitaker’s co-pilot) as provided in the request. No records
responsive to the request were located. Id. ¶¶ 6-8. Plaintiff requested confirmation of the
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USACIDC’s search parameters on June 25, 2011. The USACIDC responded on June 12, 2011,
confirming the search parameters it used and explaining the USACIDC’s file management
system, as well as Plaintiff’s right to appeal the search. Compl. at 8; Kardelis Decl. ¶ 8.
3. Department of State
On January 3, 2008, Plaintiff submitted a FOIA and Privacy Act request to the
Department of State, seeking “any and all investigative/travel records on file” relating to a
“[m]issing airplane investigation report resulting from 10.03.80 flight gone missing over Spain
with US citizen/pilot Harold William Whitaker and one other co-pilot.” See Compl. ¶10; Defs.’
MSJ, Ex. E (Declaration of Sheryl L. Winter, Director of the Office of Information Programs and
Services of the United States Department of State) (“Walter Decl.”) ¶ 4. The request was
assigned Case Control Number 200800250. Id. ¶ 5. The Office of Information Programs and
Services (“IPS”) conducted a two-part search of its Central Foreign Policy records, resulting in
the retrieval of 19 responsive documents for the first part, and two responsive documents for the
second part. Id. ¶¶ 8-9. The first group of documents was released in full on June 22, 2009, and
the second group was released in full on August 5, 2009. Id.
On July 31, 2008, Plaintiff submitted another FOIA and Privacy Act request to the
Department of State seeking records related to:
Harold William Whitaker . . . Including travel, visa, special requests, federal
benefits, piloting or travel in aircraft, DISAPPEARANCE in DC-3 Aricraft [sic]
over Spain on 3 October 1980, search, coordination with European governments
in search, correspondence with Adelynn Hiller Whitaker (wife who is since
deceased) issuance of a Certificate of Death, Insurance, enduring notification of
aircraft wreckage requests, etc.
Compl. ¶ 11; Walter Decl. ¶ 10. This request was assigned Case Control Number 200904782.
Walter Decl. ¶ 11. The IPS searched the Central Foreign Policy Records and Office of Passport
Services for records responsive to this request. The Central Foreign Policy Records search
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yielded the 19 documents already disclosed in the first part of the search from Case Number
200800250, while the Office of Passport Services search yielded no responsive documents. Id.
¶¶ 13, 16.
On April 29, 2011, Plaintiff submitted a third FOIA and Privacy Act request to the
Department of State, seeking records related to the Department’s administrative processing of all
his previous FOIA requests. Compl. ¶ 18; Walter Decl. ¶ 17. This request was assigned Case
Control Number 201103392. Walter Decl. ¶ 18.
On January 20, 2012, Plaintiff submitted another FOIA and Privacy Act request to the
Department of State, seeking “all records which were classified as ‘non-responsive’ or
‘irrelevant’” in processing Request No. 200904872. Compl. ¶ 25; Walter Decl. ¶ 20. This
request was assigned FOIA Case Control Number F-2012-21285. Walter Decl. ¶ 21. The IPS
reviewed 10 documents responsive to this request, withholding two, releasing seven, and
referring the remaining documents to another agency, from which it originated. Id. ¶ 22.
Additionally, IPS conducted supplemental searches for responsive documents, which uncovered
three documents that were released in part to Plaintiff. Id.; see also Defs.’ MSJ, Ex. F
(Declaration of Naomi J. Ludan, FOIA and Privacy Act Disclosure Specialist for the U.S.
European Command) (“Ludan Decl.”) ¶ 4.
B. Procedural History
On February 27, 2012, Plaintiff filed suit in this Court raising a variety of objections to
the processing of his FOIA and Privacy Act requests by the Defendants. See generally Compl.
Defendants subsequently filed their [5] Motion for Summary Judgment seeking to dismiss this
case in its entirety. In his Opposition, Plaintiff narrowed the issues in dispute, withdrawing (but
not conceding) his challenges to the Department of Defense’s processing of his requests and
effectively dismissing the Department of Defense as a Defendant. Pl.’s Opp’n at 2. In his
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Opposition, Plaintiff clarified that only the following issues were in dispute. With respect to the
CIA, Plaintiff challenged the adequacy of the CIA’s search as well as the Agency’s invocation of
FOIA Exemptions (b)(3) and (b)(5) to withhold information. Id. at 2-17. With respect to the
Department of State, Plaintiff challenged the adequacy of the State Department’s search, the
State Department’s failure to process Plaintiff’s requests for records about his father under the
Privacy Act, and the Department’s invocation of FOIA Exemptions (b)(5) and (b)(6) to withhold
information. Id. at 17-28. Defendants subsequently filed a reply in which they indicated that
Plaintiff’s objections to the adequacy of the CIA’s search had been resolved. Defs.’ Reply at 1
n.1. Plaintiff has not objected to this representation by Defendants in any subsequent filing, and
thus the Court understands it to be an accurate representation of the remaining issues in dispute.
II. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). Congress remained sensitive to the need to achieve balance between these
objectives and the potential that “legitimate governmental and private interests could be harmed
by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that
end, FOIA “requires federal agencies to make Government records available to the public,
subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, ––– U.S.
––––, 131 S. Ct. 1259, 1261-62 (2011). Ultimately, “disclosure, not secrecy, is the dominant
objective of the Act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made
exclusive, and must be narrowly construed.” Milner, 131 S. Ct. at 1262 (citations omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
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the agency has sustained its burden of demonstrating that the documents requested . . . are
exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d
1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its
response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden
by means of affidavits, but only if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Multi Ag. Media, 515 F.3d at 1227 (citation omitted).
“If an agency’s affidavit describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,
and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad
faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil
Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings,
the discovery materials on file, and any affidavits or declarations “show[ ] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
An agency also has the burden of detailing what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document. Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any
nonexempt information that is reasonably segregable from the requested records must be
disclosed. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition,
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district courts are obligated to consider segregability issues sua sponte even when the parties
have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv.,
177 F.3d 1022, 1028 (D.C. Cir. 1999).
III. DISCUSSION
A. CIA
Plaintiff challenges the CIA’s response to his FOIA and Privacy Act requests on two
grounds. First, Plaintiff contends that the CIA improperly invoked FOIA Exemption (b)(3).
Pl.’s Opp’n at 4-12. Second, Plaintiff argues that the CIA improperly invoked FOIA Exemption
(b)(5). Id. at 13-17. Plaintiff also initially argued that the CIA’s search for records about his
father was inadequate. Id. at 3-4. However, in its Reply brief, Defendants indicated that
Plaintiff had withdrawn this objection to the adequacy of the CIA’s search. Defs.’ Reply at 1 n.
1. Plaintiff has not indicated that the Defendants have misrepresented his position and
accordingly the Court understands this objection as no longer at issue.
1. Exemption (b)(3)
FOIA Exemption (b)(3) shields information “specifically exempted from disclosure by
statute . . . if that statute” either (1) “requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue,” or (2) “establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Here,
the CIA has invoked two statutes – the CIA Act of 1949 and the National Security Act of 1947 –
in withholding documents pursuant to Exemption (b)(3). Lutz Decl. ¶¶ 40-42. Whitaker
concedes that both of these statutes permit withholding generally under Exemption (b)(3), but
argues that the CIA is applying neither statute correctly here. Pl.’s Opp’n at 4. The Court
addresses these contentions with respect to each statute below.
a. The CIA Act
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Section 6 of the CIA Act states that “the Agency shall be exempted from the provisions
of . . . any other law which require the publication or disclosure of the organization, functions,
names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. §
3507. 2 Invoking this provision as grounds for withholding pursuant to Exemption (b)(3) with
respect to Plaintiff’s request, the CIA asserts that disclosure of certain information would
impermissibly reveal the “functions” of the CIA. See Lutz Decl. ¶ 88 (“Section 6 of the CIA Act
protects from disclosure information that would reveal the CIA’s organization, functions,
including the function of protection of intelligence sources and methods, names, official titles,
salaries, or numbers of personnel employed by the CIA.”); id. ¶ 92 (“the CIA Act’s statutory
protection of information revealing the organization, functions and other information about the
CIA is absolute”). Plaintiff argues that in using the CIA Act to withhold information related to
the “functions” of the Agency, the CIA has read the statute too broadly.
As Plaintiff correctly points out, the use of the word “functions” in the CIA Act is tied to
the phrase “of personnel employed by the Agency” which it modifies. 50 U.S.C. § 3507.
Defendants read the CIA Act too broadly when they assert that it generally permits withholding
of all information related to the “functions” of the CIA. Rather, the use of the word “functions”
is limited by the statutory phrase “of personnel employed by the Agency.”
In past cases, the D.C. Circuit has cautioned against reading the CIA Act too broadly to
permit withholding of any information related to the CIA. In Phillippi, 546 F.2d at 1015 n. 14
(D.C. Cir. 1976), the CIA argued that this provision’s “reference to withholding information
about the ‘functions . . . of personnel employed by the Agency’ allows the Agency to refuse to
provide any information at all about anything it does.” The court rejected this argument on the
2
The Lutz Declaration and the parties briefs cite to the former version of this statute, 50
U.S.C. § 403g. See Lutz Decl. ¶ 42. Pl.’s Opp’n at 8.
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basis that it would improperly “accord the Agency a complete exemption from the FOIA.” Id.
“[T]here is no indication that the section is to be read as a provision authorizing the Agency to
withhold any information it may not, for some reason, desire to make public.” Id. In subsequent
cases, the D.C. Circuit has further emphasized the limited scope of withholding pursuant to this
provision of the CIA Act, stating that this section “creates a very narrow and explicit exception
to the requirements of the FOIA. Only the specific information on the CIA’s personnel and
internal structure that is listed in the statute will obtain protection from disclosure.” Baker v.
CIA, 580 F.2d 664, 670 (D.C. Cir. 1978). See also Larson v. Dep’t of State, 565 F.3d 857, 865
n.2 (D.C. Cir. 2009) (applying this provision of the CIA Act “to withhold internal CIA
organizational data”); Linder v. Dep’t of Defense, 133 F.3d 17, 25 (D.C. Cir. 1998) (permitting
withholding pursuant to this provision for “information concerning the agency’s personnel,
including their functions, names, and official titles”).
As further support for his argument that the CIA Act only authorizes the withholding of
personnel information rather than broad withholding of information relating to the CIA’s
functions, Plaintiff points to the significantly different statutory language in the National
Security Agency Act, Pub. L. No. 86-36, § 6(a), 73 Stat. 63, 64 (1959), 50 U.S.C. § 3605(a).
Pl.’s Opp’n at 9-10. That provision, in contrast to the CIA Act, broadly prohibits “disclosure of
the organization or any function of the National Security Agency, or any information with respect
to the activities thereof . . . .” 50 U.S.C. § 3605(a) (emphasis added). In Hayden v. NSA/CSS,
608 F.2d 1381, 1390 (D.C. Cir. 1979), the D.C. Circuit made clear that this provision extends
more broadly than the CIA Act, because in contrast to the CIA Act, it “protects not only
organizational matters . . . but also ‘any information with respect to the activities’ of the NSA.”
Accordingly, the D.C. Circuit recognized that the statutory withholding authority afforded to the
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NSA was “broader than the CIA’s.” Id. at 1390. Acquiescing in the CIA’s broad reading of the
provision to allow for withholding of any information related to the CIA’s “functions” would
contravene this result, negating the distinction recognized by the D.C. Circuit between the CIA
Act and the broader National Security Agency Act.
Reviewing this same precedent in National Security Counselors v. CIA, Nos. 11-cv-443,
11-cv-444, 11-cv-445, 2013 WL 4111616 (D.D.C. Aug. 15, 2013), a case decided after the
parties submitted their briefing, the court similarly found that the CIA was applying the CIA Act
too broadly. In that case, Judge Beryl A. Howell concluded, as this Court does, that “the plain
text of the statute limits protection from disclosure only to the functions and organization
pertaining to or about personnel.” Id. at *55 (emphasis added). Accordingly, this Court agrees
with Plaintiff that the CIA has applied the CIA Act too broadly.
Defendants cite two cases for the proposition that the CIA Act authorizes the broad
withholding of documents relating to the CIA’s functions asserted here. Defs.’ Reply at 5.
However, these cases are inapposite. In Schoenman v. FBI, 841 F. Supp. 2d 69, 84 (D.D.C.
2012), “[p]ursuant to the Central Intelligence Agency Act, the CIA withheld information about
its foreign intelligence collection activities, the names of its employees, personal identifiers,
official titles, file numbers, and internal organizational data.” Id. As an initial matter, “the
names of its employees, personal identifiers, official titles, file numbers, and internal
organizational data” would all appear to be information relating to CIA personnel that could
properly be withheld under the statute. The only issue is whether the opinion’s approval of the
CIA’s withholding “information about [the CIA’s] foreign intelligence collection activities”
suggests a broader understanding of the statute that permits withholding of the CIA’s functions
generally. Schoenman is too brief in its analysis to answer this question. The opinion does not
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state what “information about [the CIA’s] foreign intelligence collection activities” the Agency
was permitted to withhold and whether this material was divorced from information related to
Agency personnel. The opinion’s brief discussion of this subject, consisting of only a few
sentences, is too thin a reed for Defendants to stand on, particularly in light of the D.C. Circuit
precedent narrowly construing the CIA Act. Defendants’ citation to McGehee v. Dep’t of
Justice, 800 F. Supp. 2d 220, 232 (D.D.C. 2011), is similarly unavailing as the CIA in that case
sought to withhold information relating to the CIA’s functions both under the CIA Act and the
National Security Act, as “intelligence sources and methods.” Again, the brief reasoning in this
opinion is too ambiguous to contradict the text of the statute. 3
Accordingly, in light of the fact that the CIA has too broadly applied the CIA Act to
withhold information pursuant to Exemption (b)(3), the Court orders the CIA to either (a)
disclose any otherwise non-exempt information to Plaintiff, or (b) along with any subsequent
renewed motion for summary judgment, file a more sufficient declaration and Vaughn index
which justifies the actual relationship between the withheld information and personnel functions
of the CIA.
b. The National Security Act
The National Security Act of 1947 vests the Director of National Intelligence with the
authority to protect “intelligence sources and methods.” 50 U.S.C. § 3024. 4 Plaintiff concedes
that this provision authorizes withholding under Exemption (b)(3), but argues that the CIA has
applied it improperly here, by arguing that its processing materials for Plaintiff’s FOIA and
3
To the extent McGehee did actually read the CIA Act to broadly permit withholding of
the CIA’s “functions” rather than the “functions . . . of personnel employed by the Agency”, the
Court respectfully disagrees with its conclusion and agrees with Judge Howell’s opinion in
National Security Counselors, 2013 WL 4111616.
4
The Lutz Declaration cites to the former version of this statute, 50 U.S.C. § 403-1(i)(1).
See Lutz Decl. ¶ 41.
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Privacy Act requests constitute “intelligence sources and methods” covered by the statute. Pl.’s
Opp’n 4-7.
In the Lutz Declaration, the CIA states that it has withheld pursuant to Exemption (b)(3)
and the National Security Act “information pertaining to intelligence sources and methods, such
as internal document processing methods and internal taskings and tasking responses within
CIA’s decentralized information management systems.” Lutz Decl. ¶ 90. Plaintiff argues that
these materials are not themselves “intelligence sources and methods” within the meaning of the
National Security Act. Pl.’s Opp’n at 7. While Plaintiff concedes that these materials may
contain “intelligence sources and methods”, he contends that FOIA processing materials and
document processing methods do not themselves constitute “intelligence sources and methods”
within the meaning of the National Security Act. Id.
Although the case law on the meaning of “intelligence sources and methods” is sparse,
the precedent that exists carries great weight. In CIA v. Sims, 471 U.S. 159 (1985), the Supreme
Court provided the most extensive discussion of meaning of this term. 5 Noting the “broad
sweep” of the statutory phrase “intelligence sources and methods” the Court stated that
“Congress simply and pointedly protected all sources of intelligence that provide, or are engaged
to provide, information the Agency needs to perform its statutory duties with respect to foreign
intelligence.” Sims, 471 U.S. at 169-70 (emphasis added). Accordingly, the Court specified that
“[t]he ‘plain meaning’ of [the provision] may not be squared with any limiting definition that
goes beyond the requirement that the information fall within the Agency’s mandate to conduct
foreign intelligence.” Id. at 169.
5
Sims addressed a prior version of the statute that referred to the Director of Central
Intelligence. See 471 U.S. at 163. However, the revision of the statute to refer to the “Director
of National Intelligence” has no bearing on this case. See Wolf v. CIA, 473 F.3d 370, 377 n. 6
(D.C. Cir. 2007).
15
Relying on Sims, Plaintiff argues that FOIA processing materials as well as the CIA’s
methods for processing FOIA requests fall outside the definition of “intelligence sources and
methods” and thus may not be withheld under the National Security Act. Pl.’s Opp’n at 7.
Plaintiff contends that these materials have nothing to do with the CIA’s mandate to conduct
foreign intelligence, but rather concern the CIA’s separate obligation to process and release
records under FOIA and the Privacy Act. Id.
In their Reply Brief, Defendants provide a supplemental declaration from Martha Lutz
which provides additional detail regarding the withholding of the FOIA processing materials
pursuant to Exemption (b)(3) and the National Security Act. See Defs.’ Reply, Ex. 1
(Supplemental Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, Central
Intelligence Agency) (“Suppl. Lutz Decl.”) ¶ 8. Responding to Plaintiff’s objections, this
declaration states that, “[a]s a point of clarification, the CIA invoked Exemption 3 in conjunction
with the National Security Act to protect portions of the records which discuss issues related to
responding to plaintiff’s requests for classified information.” Id. (emphasis added). This
declaration notes that the National Security Act was asserted to protect “discussion regarding
formulating responses to requests, such as Plaintiff’s, which ask for information that would
reveal intelligence sources and methods.” Id. (emphasis added). “Moreover,” the declaration
states, “to the extent that the records at issue contain information as to the CIA’s collection,
search, and intelligence analysis activities and capabilities, they constitute ‘intelligence source[s]
and methods’ covered by the Act.” Id.
This Reply Brief and the Supplemental Lutz Declaration address some, but not all, of
Plaintiff’s arguments. To the extent that the CIA asserts that the FOIA processing materials
themselves contain intelligence sources and methods, these materials may be withheld.
16
Similarly, to the extent these documents discuss whether to disclose information that would
reveal intelligence sources or methods, these materials may be withheld pursuant to the National
Security Act. As the Supreme Court set out in Sims, the CIA has “very broad authority to protect
all sources of intelligence information from disclosure.” 471 U.S. at 168-69. “Because of this
‘sweeping power’, courts are required to give ‘great deference’ to the CIA’s assertion that a
particular disclosure could reveal intelligence sources or methods.” Berman v. CIA, 501 F.3d
1136, 1140 (9th Cir. 2007) (citations omitted). “[I]t is the responsibility of the Director . . ., not
that of the judiciary, to weigh the variety of complex and subtle factors in determining whether
disclosure of information may lead to an unacceptable risk of compromising the Agency’s
intelligence-gathering process.” Sims, 471 U.S. at 180. See also Linder v. Dep’t of Defense, 133
F.3d 17, 25 (D.C. Cir. 1998). Here, with the Supplemental Lutz Declaration, the CIA has stated
that the document processing materials either themselves contain intelligence sources and
methods – as they discuss the CIA’s collection, search, and intelligence analysis activities and
capabilities – or contain information that would reveal these intelligence sources and methods.
Suppl. Lutz Decl. ¶ 8. In light of the “great deference” afforded the CIA pursuant to this
provision, the Court concludes that this material may be withheld pursuant to the National
Security Act and Exemption (b)(3).
However, despite this substantial deference, the Court still has an independent role to
play in the FOIA analysis. To the extent the CIA asserts that the FOIA processing materials are
themselves “intelligence sources and methods,” the Agency goes too far. To be sure, as
discussed, the Court agrees that these documents may contain “intelligence and methods.” Yet
although the FOIA processing materials “may contain information that reveals intelligence
sources and methods, this does not mean that [they] themselves are intelligence methods.” In
17
Berman, 501 F.3d 1136, the Ninth Circuit considered an analogous situation, with the CIA
asserting that Presidential Daily Briefings (“PDBs”) themselves constituted “intelligence sources
and methods.” While the court agreed that the PDBs could be withheld on the basis that they
contained intelligence sources and methods, it also held that the CIA swept too broadly in
arguing that the PDBs themselves constituted intelligence sources and methods. “If we were to
accept the CIA’s logic,” the Court concluded, “then every written CIA communication –
regardless of content – would be a protected ‘intelligence method’ because it is a method that
[the] CIA uses in doing its work.” Id. at 1146. As the Ninth Circuit observed in that case,
“whether or not a particular document used by the CIA in its ordinary course of business is an
intelligence method depends upon the content of the document.” Id. So too here, the FOIA
processing materials may contain intelligence sources and methods and thus may be withheld on
the basis that their disclosure would reveal these intelligence sources and methods. However,
they may not be withheld on the ipse dixit that they simply are intelligence sources and methods.
It may turn out that this final point is largely academic, as no portion of the FOIA
processing materials may be disclosed to Plaintiff without disclosing intelligence sources or
methods or information that could reveal intelligence sources or methods. Accordingly, the
Court orders the CIA to either (a) disclose any otherwise non-exempt information to Plaintiff, or
(b) along with any subsequent renewed motion for summary judgment, file a more sufficient
declaration and Vaughn index which explains in greater detail why all of the information
withheld pertains to intelligence sources and methods.
2. Exemption (b)(5)
Plaintiff next challenges the CIA’s withholding of information pursuant to FOIA
Exemption (b)(5). Pl.’s Opp’n at 13-17. Exemption (b)(5) permits the withholding of “inter-
18
agency or intra-agency memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In invoking
exemption (b)(5), the CIA has withheld this information pursuant to the deliberative process
privilege and the attorney-client privilege.
a. Deliberative Process Privilege
The deliberative process privilege protects “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (quotation marks and citations omitted). It recognizes “that officials
will not communicate candidly among themselves if each remark is a potential item of discovery
and front page news, and its object is to enhance the quality of agency decisions by protecting
open and frank discussion among those who make them.” Id. at 8-9 (quotation marks and
citations omitted). The privilege is designed to “protect the executive's deliberative processes –
not to protect specific materials.” Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d
1565, 1568 (D.C. Cir. 1987). To qualify for protection under the privilege, materials must be
“both ‘predecisional’ and ‘deliberative.’” Pub. Citizen, Inc. v. Office of Mgmt. and Budget, 598
F.3d 865, 874 (D.C. Cir. 2010) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980)). A document is predecisional “if it was generated before the adoption
of an agency policy and deliberative if it reflects the give-and-take of the consultative process.”
Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quotation
marks and citations omitted). To be deliberative, information must “reflect the personal opinions
of the writer rather than the policy of the agency.” Coastal States Gas, 617 F.2d at 866. “The
19
agency has the burden of establishing what deliberative process is involved, and the role played
by the documents in issue in the course of that process.” Id. at 868.
Here, Plaintiff challenges the CIA’s invocation of the deliberative process privilege with
respect to the following documents: C05505667, C05506206, C05505440, C05506192,
C05543099, C05653569, C05764944, C05873262, C05873264, C05873265, C05873267, and
C05873268. Pl.’s Opp’n at 13 n. 8. The Lutz Declaration states that “the CIA determined that
the information withheld under FOIA exemption (b)(5) pertains to predecisional deliberations by
personnel regarding the nature of information retrieved, the scope of legal exemptions, the
application of exemptions to particular material, or making recommendations related to final
Agency determinations.” Lutz Decl. ¶ 93. Further, the Supplemental Lutz Declaration states
that “[t]he deliberative process privilege also applies to these e-mails because they discuss and
contain recommendations for completing the processing of plaintiff’s request in relation to this
litigation.” Suppl. Lutz Decl. ¶ 11. Reviewing these declarations, the Court is satisfied that the
information withheld from these documents is both predecisional and deliberative and thus falls
under the deliberative process privilege.
First, these documents are predecisional. “To ascertain whether the documents at issue
are pre-decisional, the court must first be able to pinpoint an agency decision or policy to which
these documents contributed.” Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in
part on other grounds, 724 F.2d 201 (D.C. Cir. 1984). Here, the documents at issue relate to the
CIA’s formulation of responses to Plaintiff’s FOIA requests. Plaintiff argues that these
documents are not protected by the deliberative process privilege because the ultimate decision
regarding these requests is evident from the response letters and court filings provided by the
CIA. Pl.’s Opp’n at 14. However, these documents are not themselves the responses to
20
Plaintiff’s FOIA requests, nor does the Lutz Declaration state that they were adopted or
incorporated by reference in the CIA’s responses to Plaintiff. Rather, the Lutz Declaration
characterizes these documents as intermediate recommendations generated in reaching the
ultimate decision as to which materials to disclose to Plaintiff.
For similar reasons, these documents are also deliberative, as they relate to the CIA’s
discussions about how to respond to Plaintiff’s FOIA requests. Discussions regarding “the
nature of information retrieved, the scope of legal exemptions, the application of exemptions to
particular material, [and] recommendations related to final Agency determinations”, Lutz Decl. ¶
93, would appear to reflect the necessary “give-and-take of the consultative process.” Coastal
States Gas, 617 F.2d at 866. Plaintiff argues that disclosure of this material would not
inaccurately reflect or prematurely disclose the views of the agency, because the ultimate
decision of the CIA regarding his FOIA and Privacy Act requests is clear from publicly disclosed
documents such as the Lutz Declarations. Pl.’s Opp’n at 14. Accordingly, he argues that it is
unreasonable to think someone reading these notes would mistake which conclusions were
adopted as the official agency position. Id. The Court rejects this argument. Premature or
inaccurate disclosure of agency views is not the only rationale for the deliberative process
privilege. The privilege also exists to ensure that free and frank discussion among officials can
occur, as “officials will not communicate candidly among themselves if each remark is a
potential item of discovery . . . .” Klamath, 532 U.S. at 8-9.
Relatedly, Plaintiff argues that public disclosure of agency deliberations is “unlikely” “to
stifle honest and frank communications within the agency” “in cases where there is no
identifying information that would link an individual to a document.” Wilderness Soc’y v. Dep’t
of Interior, 344 F. Supp. 2d 1, 15 (D.D.C. 2004). On this basis, Plaintiff argues that since the
21
CIA may withhold its employees’ identifying information pursuant to the CIA Act and
Exemption (b)(3), as discussed supra, redactions of the remainder of these e-mails is
inappropriate under the deliberative process privilege. Pl.’s Opp’n at 15-16. The Court
disagrees. Although Wilderness Soc’y recognized “identifying information” as an important
factor in assessing whether “disclosure is likely in the future to stifle honest and frank
communications within the agency”, the case goes on to say that even where such personal
identifying information is lacking, “such a document can only properly be withheld if the
defendant can clearly demonstrate that the document is both predecisional and deliberative.” 344
F. Supp. 2d at 15. Here, as discussed, Defendants have satisfied this burden. Accordingly, even
if CIA employees’ identifying information were withheld from these documents, assertion of the
deliberative process privilege would still be proper here with respect to these documents.
In addition, pursuant to its independent obligation to consider the issue of segregability,
the Court is satisfied from the CIA’s description of its review process that all reasonably
segregable portions of these records have been produced. See Lutz Decl., Ex. L (CIA Vaughn
Index) at 4, 6, 10, 14 (“The CIA conducted a line-by-line review of this document to determine
whether meaningful reasonably segregable, non-exempt portions of the document could be
released. This document is released in part because there is some meaningful, non-exempt
information that can reasonably be segregated from any exempt information.”); Errata, ECF No.
[11], Ex. 1 (Supplemental CIA Vaughn Index) at 2, 4, 10, 14, 16, 18, 20 (“The CIA conducted a
line-by-line review of this document to determine whether meaningful reasonably segregable,
non-exempt portions of the document could be released. This document is denied in full because
there is no meaningful, non-exempt information that can reasonably be segregated from any
exempt information.”).
22
b. Attorney-Client Privilege
“The attorney-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services,” as well as “communications
from attorneys to their clients if the communications rest on confidential information obtained
from the client.” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997)
(quotation marks and citations omitted). In order to demonstrate the applicability of the privilege,
the proponent must establish each of the following essential elements: (1) the holder of the
privilege is, or sought to be, a client; (2) the person to whom the communication is made is a
member of the bar or his subordinate and, in connection with the communication at issue, is
acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the
attorney was informed by his client, outside the presence of strangers, for the purpose of securing
legal advice; and (4) the privilege has been claimed by the client. In re Sealed Case, 737 F.2d 94,
98-99 (D.C. Cir. 1984). A “fundamental prerequisite to the assertion of the privilege” is
“confidentiality both at the time of the communication and maintained since.” Coastal States,
617 F.2d at 863; accord Fed. Trade Comm'n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir.
2002).
“In the governmental context, the ‘client’ may be the agency and the attorney may be an
agency lawyer.” Tax Analysts, 117 F.3d at 618; accord Coastal States, 617 F.2d at 863 (The
attorney-client privilege, as incorporated by Exemption (b)(5), applies when “the Government is
dealing with its attorneys as would any private party seeking advice to protect personal interests,
and needs the same assurance of confidentiality so it will not be deterred from full and frank
communications with its counselors.”). It is well-established, however, that not every
communication between an attorney and a client – government or otherwise – is made “for the
23
purpose of securing legal advice or services.” As the D.C. Circuit has explained, “consultation
with one admitted to the bar but not in that other person’s role as a lawyer is not protected.” In re
Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (per curiam) (citations and quotation marks
omitted). Hence, a government attorney's “advice on political, strategic, or policy issues,
valuable as it may [be], would not be shielded from disclosure by the attorney-client privilege.”
Id.
Here, the CIA has asserted the attorney-client privilege with respect to two documents,
C05873267 and C05873268. Pl.’s Opp’n at 16. The CIA’s initial materials stated only that
these documents consisted of “attorney client privileged communication between CIA personnel
and in-house counsel.” However, after Plaintiff challenged this description as conclusory and
insufficient to support the CIA’s invocation of the privilege pursuant to FOIA Exemption (b)(5),
Pl.’s Opp’n at 16-17, the CIA included with its reply brief a supplemental declaration from
Martha Lutz which offers additional detail regarding these documents. The Supplemental Lutz
Declaration states that these documents consist of internal e-mail communications, and that
“[t]he attorney-client privilege applies to the portions of the emails that contain legal advice
provided by the CIA’s Office of General Counsel to IMS in connection with the instant
litigation. The confidentiality of these communications was maintained and the contents of these
emails were not shared beyond the parties.” Supp. Lutz Decl. ¶ 10. Accordingly, based on the
additional information provided in the Supplemental Lutz Declaration, the Court concludes that
the CIA properly invoked the attorney-client privilege here. The declaration specifies that the
CIA’s Information Management Services (IMS) consulted with CIA’s Office of General Counsel
regarding legal advice in connection with this litigation. In addition, the CIA has claimed
privilege over these documents and the confidentiality of these communications has been
24
maintained since the discussion. Accordingly, assertion of the attorney-client privilege is
appropriate here to protect “confidential communications between an attorney and his client
relating to a legal matter for which the client has sought professional advice.” Mead Data, 566
F.2d at 252.
In addition, pursuant to its independent obligation to consider the issue of segregability,
the Court is satisfied from the CIA’s description of its review process that all reasonably
segregable portions of these documents have been produced. See Errata, ECF No. [11], Ex. 1 at
18, 20 (“The CIA conducted a line-by-line review of this document to determine whether
meaningful reasonably segregable, non-exempt portions of the document could be released. This
document is denied in full because there is no meaningful, non-exempt information that can
reasonably be segregated from any exempt information.”).
B. State Department
Whitaker challenges the State Department’s response to his FOIA and Privacy Act
request on four grounds. First, he alleges that the State Department performed an inadequate
search for responsive records. Pl.’s Opp’n at 17-19. Second, he claims that State wrongly
determined that records about Plaintiff’s father were not subject to the Privacy Act. Id. at 19-26.
Finally, Whitaker argues that State improperly invoked FOIA Exemptions (b)(5) and (b)(6) to
withhold information. Id. at 27-28.
1. Adequacy of Search
Plaintiff offers two arguments that the State Department’s search for records in response
to his request was inadequate. First, according to Plaintiff, “[e]ven though a significant
percentage of records about the disappearance discussed the co-pilot, U.S. Army Major
Lawrence Jerome Eckmann, State failed to conduct a search for records about Maj. Eckmann,
searching only for records about Whitaker’s father.” Id. at 18. Plaintiff argues that there is
25
significant chance that responsive records exist for Plaintiff’s request which mention only
Eckmann, and not Plaintiff’s father. Second, Plaintiff argues that the State Department’s failure
to locate any records in the Office of Passport Services (“PPT”) regarding his father conflicts
“with the records disposition schedule for various types of passport records, many of which
dictate that such records are to be maintained for fifty years or more. Id. (citing id., Exhibit E
(State Records Schedule, Chapter 13: Passport Records)). Plaintiff contends that since there is a
presumption that agencies do not destroy records in violation of an approved records schedule,
the only explanation for the State Department’s failure to locate passport records must be an
inadequate search.
An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation omitted). “At summary
judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely to contain responsive materials (if
such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotations
and citation omitted). “The agency cannot limit its search to only one or more places if there are
additional sources ‘that are likely to turn up the information requested.’” Valencia-Lucena, 180
F.3d at 326 (citation omitted). Ultimately, the adequacy of a search is “determined not by the
fruits of the search, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted). See also Weisberg v. DOJ, 745
F.2d 1476, 1485 (D.C. Cir. 1984) (“[T]he issue to be resolved is not whether there might exist
any other documents possibly responsive to the request, but rather whether the search for those
documents was adequate.”) (emphasis in the original).
26
a. Failure to Search for Records Relating to Eckmann
In arguing that the State Department’s search in response to his requests was inadequate
in failing to search for records about Maj. Eckmann, Whitaker relies chiefly on Kowalczyk v.
Department of Justice, 73 F.3d 386 (D.C. Cir. 1996). In that case, a federal prisoner sent a FOIA
request to the Washington, D.C. headquarters of the Federal Bureau of Investigation seeking “all
records in agency files, including but not limited to the Federal case number 88 CR 701 and
counsel for the defense Louis E. Diamond and Louis Rosenthal Esq.” Id. at 388. After learning
that the Bureau only searched for documents responsive to his FOIA request at its Washington,
D.C. headquarters, Kowalczyk brought suit, arguing that the Bureau was obligated to also search
for records at its New York field office, as his conviction occurred in the Eastern District of New
York. The Bureau responded that Kowalczyk’s request “did not alert its FOIA compliance staff
that Kowalczyk wanted records that might be in the agency’s New York office. Kowalczyk says
the staff should have realized that.” Id.
The D.C. Circuit unanimously affirmed the district court’s grant of summary judgment to
the Bureau. “A request reasonably describes records if ‘the agency is able to determine precisely
what records are being requested.’” Id. (quoting Yeager v. Drug Enforcement Administration,
678 F.2d 315, 326 (D.C. Cir. 1982). Because Kowalczyk’s request “made no reference to the
New York field office, or, indeed, to New York” his request “did not enable the FBI to determine
that the New York field office had responsive records.” Id. at 389. To be sure, the responsive
records located by the Bureau’s Washington, D.C. headquarters did “indicate that Kowalczyk
was indicted in the Eastern District of New York and that the Bureau’s New York office had
records of his activities involving vehicle identification numbers and stolen cars.” Id. Yet none
of the documents located bore the case number in the request – “88 CR 701” – and the request
27
did not mention anything regarding the nature of charges in that case. Id. Although under a duty
to “conduct a search reasonably calculated to uncover all relevant documents,” the Bureau was
nevertheless not required to “speculate about potential leads” including, “the connection between
‘Federal case number 88 CR 701,’ to which Kowalczyk referred, and Kowalczyk’s indictment in
the Eastern District of New York [which its searches uncovered].” Id. “The Bureau”, the panel
concluded, “is not obligated to look beyond the four corners of the request for leads to the
location of responsive documents.” Id. Moreover, leads the requester himself discovers in the
documents received from the agency are properly the subject of a second FOIA request. Id.
Nevertheless, despite this holding, the Kowalczyk court closed with a caveat. “This is not
to say that the agency may ignore what it cannot help but know, but we suspect that it will be the
rare case indeed in which an agency record contains a lead so apparent that the Bureau cannot in
good faith fail to pursue it.” Id. Stressing the narrow scope of this exception, the panel
emphasized that an “agency need pursue only a lead that it cannot in good faith ignore, i.e., a
lead that is both clear and certain.” Id. “Put differently, an agency need only pursue leads that
raise red flags pointing to the probable existence of responsive agency records that arise during
its efforts to respond to a FOIA request.” Wiesner v. FBI, 668 F. Supp. 2d 164, 170 (D.D.C.
2009). The exception did not apply to Kowalczyk because “[h]is FOIA request contains so little
information that, in order to incur any obligation to search the New York field office, the Bureau
would have had to find a document at headquarters specifically indicating that documents related
to a case bearing the number 88 CR 701 were located in its New York office.” Kowalczyk, 73
F.3d at 389.
In subsequent cases, the D.C. Circuit has cited Kowalczyk for the proposition that
“[w]hen a request seeks all agency records on a given subject, the agency is obliged to pursue
28
any ‘clear and certain’ lead it cannot in good faith ignore.” Cooper v. Dep’t of Justice, No. 03-
5172, 2004 WL 895748 at *2 (D.C. Cir. Apr. 23, 2004) (per curiam). The D.C. Circuit has
emphasized that an agency “must revise its assessment of what is ‘reasonable’ in a particular
case to account for leads that emerge during its inquiry. Consequently, the court evaluates the
reasonableness of an agency’s search based on what the agency knew at its conclusion rather
than what the agency speculated at its inception.” Campbell v. Dep’t of Justice, 164 F.3d 20, 28
(D.C. Cir. 1998).
Here, Plaintiff submitted four FOIA requests to the State Department, which the Court
lists below, along with the respective request numbers assigned by the State Department:
Case No. 200800250: Records relating to “Missing airplane investigation report
resulting from 10.03.80 flight gone missing over Spain with US citizen/pilot
Harold William Whitaker and one other co-pilot. The pilot was my father. No
wreckage was found. He was declared dead by the US government. I am seeking
any and all investigative/travel records on file with the Department of State or
FAA. My father was prior an FAA flight inspector for ILS.”
Case No. 200904872: Records relating to “Harold William Whitaker . . .
Including travel, visa, special requests, federal benefits, piloting or travel in
aircraft, DISAPPEARANCE in DC-3 Aricraft [sic] over Spain on 3 October
1980, search, coordination with European governments in search, correspondence
with Adelynn Hiller Whitaker (wife, who is since deceased) issuance of
Certificate of Death, Insurance, enduring notification of aircraft wreckage
requests, etc.”
Case No. 201103392: “[A]ll records pertaining to your office’s administrative
processing of all FOIA or Privacy Act requests [Whitaker] submitted to you since
January 2008. Two are Request Nos. 200800250 and 200904872, but there are
others. He requests records about ANY FOIA requests he has submitted since
January 2008.”
Case No. 201221285: “[A]ll records which were classified as ‘non-responsive’ or
‘irrelevant’ in your processing of [Whitaker’s] previous FOIA/PA Request No.
200904872. You may exclude records which were classified as such because they
were released to him in response to Request No. 200800250.”
29
Walter Decl. ¶¶ 4, 10, 17, 20. As Plaintiff appears to have discovered through the results of his
various FOIA requests to the agencies involved in this case, Lawrence J. Eckmann was the co-
pilot on board the airplane with Plaintiff’s father. Although none of Plaintiff’s requests to the
Department of State mention Eckmann by name, Plaintiff argues that the possible existence of
other records regarding the missing airplane which only mention Maj. Eckmann was a “lead so
apparent that the [State Department] [could not] in good faith fail to pursue it.” Kowalczyk, 73
F.3d at 389. In support of this argument, Plaintiff points the Court to a document which was
deemed non-responsive to Case No. 200800250 because it discussed Eckmann and the missing
DC-3 airplane, but only referred to Whitaker’s father in passing. 6 Pl.’s Opp’n at 18. He also
notes that “a significant percentage of records about the disappearance discussed the co-pilot,
U.S. Army Major Lawrence Jerome Eckmann.” Id. Based on these documents, Plaintiff argues
there are likely records pertaining to the disappearance of his father’s airplane which mention
Eckmann (the co-pilot of the plane) but not his father. The Court finds that Whitaker has
provided more than “[m]ere speculation that as yet uncovered documents may exist.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). “Where specific records . . . are
referenced in [agency] documents, it is no longer ‘mere speculation’ that the files exist.” Hall v.
CIA, 881 F. Supp. 2d 38, 61-62 (D.D.C. 2012). Yet in processing Case No. 200800250, the State
Department admits that it only searched for the name Harold Whitaker (as well as variations on
6
Whitaker obtained this document through his subsequent FOIA requests to the State
Department, although it is unclear whether these documents were released in response to Case
No. 20090482 or Case No. 201221285. Compare Pl.’s Opp’n at 18 n. 10 (describing these
documents as “only processed when Whitaker explicitly requested ‘all records which were
classified as ‘non-responsive’ or ‘irrelevant’ in State’s processing of his previous request”) with
Walter Decl. ¶ 22 (“Plaintiff was also informed that in an abundance of caution, searches of the
retired records of the . . . U.S. Embassy Madrid, U.S. Embassy Bonn . . . had been conducted in
response to FOIA request 200904872 and resulted in the retrieval of three responsive documents.
Of these, one was released in full and two were released in part.”)
30
this name). See Walter Decl. ¶ 27. State’s decision to search only for records related to
Whitaker’s father, and its corresponding failure to search for records related to Eckmann,
Plaintiff argues, renders the search inadequate.
The Court agrees with Plaintiff that the State Department’s search was inadequate and
should have been revised to include a search for documents related to the disappearance of the
DC-3 airplane that mention Eckmann, but not Whitaker. This would appear to be the rare case
“in which an agency record contains a lead so apparent that the [agency] cannot in good faith fail
to pursue it.” Kowalczyk, 73 F.3d at 389. Plaintiff’s first request, Case No. 200800250, broadly
sought records relating to the “[m]issing airplane investigation report resulting from [the]
10.03.80 flight gone missing over Spain . . . .” Walter Decl. ¶ 4. Although Plaintiff’s request
referred to his father by name as one of the plane’s pilots, the request also referred specifically to
a co-pilot on board the plane. The co-pilot was admittedly unnamed, but the request nevertheless
identified a concrete second occupant of the plane, as opposed to merely a potential or
hypothetical additional occupant. In contrast to Kowalczyk, where the Plaintiff made no
reference to the New York field office, here Plaintiff explicitly referenced the co-pilot of the
plane about which he sought records in his request. Accordingly, upon learning from its search
for documents related to Harold Whitaker that the co-pilot referenced in the request was
Lawrence Eckmann, the State Department was presented with a “lead that [was] both clear and
certain.” At this point, the Department was not required to “speculate about potential leads” or
the connection between the co-pilot to which Whitaker referred and Eckmann. The connection
was obvious.
In arguing that its search was adequate, the State Department leans heavily on the
language from Kowalczyk that an agency “is not obliged to look beyond the four corners of the
31
request for leads to the location of responsive documents.” Kowalczyk, 73 F.3d at 389. Yet, as
other courts of this district have noted, “this principle does not grant an agency carte blanche to
ignore additional leads that unmistakably come to light during its search efforts.” Neighborhood
Assistance Corp. of America v. U.S. Dep’t. of Housing & Urban Dev., 2013 WL 5314457, *6 n.
3 (D.D.C. Sept. 24, 2013). More importantly, given Plaintiff’s reference to the co-pilot in his
request, the State Department did not need “to look beyond the four corners of the request for
leads to the location of responsive documents.” When State’s search revealed the identity of this
co-pilot, it should have followed up on the lead presented in the text of the request. Accordingly,
the State Department’s search was inadequate for failure to search for records relating to Major
Eckmann.
b. Missing Passport Records
Plaintiff also raises a second challenge to the adequacy of the State Department’s search.
Whitaker argues that the State Department’s failure to locate any records in the Office of
Passport Services (“PPT”) regarding his father conflicts “with the records disposition schedule
for various types of passport records, many of which dictate that such records are to be
maintained for fifty years or more. Pl.’s Opp’n. at 18-19 (citing id., Exhibit E (State Records
Schedule, Chapter 13: Passport Records)). Plaintiff contends that since there is a presumption
that agencies do not destroy records in violation of an approved records schedule, the only
explanation for the State Department’s failure to locate passport records must be an inadequate
search. The Court disagrees.
Courts of this district have rejected similar challenges to the adequacy of a search based
on apparently missing documents. See, e.g., Piper v. U.S. Dep’t of Justice, 294 F. Supp. 2d 16,
22-24 (D.D.C. 2003); Roberts v. U.S. Dep’t of Justice, No. 92-1707, 1995 WL 356320 (D.D.C.
32
Jan. 29, 1993). For example, in Piper, the plaintiff “challenge[d] the adequacy of the
Government’s search by alleging many documents [were] missing from the files, and that there
[were] gaps in the serialization of the files.” Id. at 21. Relying on the affidavits provided by the
Government, the court rejected this challenge, concluding that the Government had shown that
its search was reasonable. In that case, the affidavits “demonstrated the adequacy of the search
because they identif[ied] the affiants, their respective positions within the FBI, the treatment of
plaintiff’s FOIA request, and explain[ed], in detail, the FBI’s Freedom of Information-Privacy
Acts (FOIPA) Section’s procedure regarding requests and the mechanics and scope of a CRS
search.” Id. at 23. So too here, the State Department’s declaration identifies its author, her
position within the State Department, the treatment of Plaintiff’s FOIA requests, and explains in
detail the search procedure regarding these requests. This description of the search procedure
further specifies that “in response to [Plaintiff’s] FOIA request number 200904872, a paralegal
within PPT searched PPT’s paper records and the [Passport Information Electronic Records
System] database using the subject’s full name, date of birth, and place of birth. Searches were
structured to capture responsive records created between January 1973 and January 1985. PPT
did not locate any responsive documents in response to these searches.” Walter Decl. ¶ 28.
Because this declaration describes in detail the search of the PPT records in response to
Plaintiff’s request, and “the Government enjoys a good faith presumption in FOIA actions,”
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), the Court will not find
the State Department’s search inadequate simply because it failed to turn up the records sought
by Plaintiff. “An agency need not ‘establish beyond doubt’ that it does not possess a document,
but instead need only show that its search was reasonably adequate.” Roberts, 1995 WL 356320,
at *1.
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In addition, despite Plaintiff’s implicit assertions, the failure to retain these documents
does not create liability on the State Department under FOIA. As the Supreme Court has made
clear, “FOIA is only directed at requiring agencies to disclose those ‘agency records’ for which
they have chosen to retain possession or control.” Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136, 151-52 (1980). “The Act 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.” Id. at 152. Relatedly, “[e]ven where the Government was obligated to
retain a document and failed to do so, that failure would create neither responsibility under FOIA
to reconstruct those documents nor liability for the lapse.” Piper, 294 F. Supp. 2d at 22 (internal
quotation marks and citation omitted) (emphasis added). “Nothing in the law requires the
agency to document the fate of documents it cannot find. If a reasonable search fails to unearth a
document, then it makes no difference whether the document was lost, destroyed, stolen, or
simply overlooked.” Roberts, 1995 WL 356320, at *2. Rather, “[w]hen an agency cannot locate
a document, FOIA only requires the agency to show that it has made a reasonable search.” Id.
The State Department has met that burden here with respect to the PPT records. Accordingly,
the Court does not find the State Department’s search inadequate because of the failure to
uncover PPT records relating to Plaintiff’s father. Furthermore, the fact that these records could
not be located in spite of an applicable document retention schedule does not create liability for
this Defendant.
2. Privacy Act Processing
Plaintiff next argues that the State Department improperly processed his requests for his
father’s records only under FOIA, and not under the Privacy Act as well. Pl.’s Opp’n at 19-26.
In response, the State Department explains that it only processed these requests for Plaintiff’s
34
father’s records under FOIA, and not under the Privacy Act, because the records concern another
individual – Plaintiff’s father – and do not themselves concern Plaintiff, the requestor of the
records. Defs.’ Reply at 11. Defendants contend that the Privacy Act does not give third party
requestors access to the records of deceased individuals. Id. Challenging this position, Whitaker
argues that as his father’s next-of-kin, he should be permitted to exercise his father’s access
rights under the Privacy Act. Pl.’s Opp’n at 19-20.
The State Department appears to draw its position from the Privacy Act guidelines
promulgated by the Office of Management and Budget (“OMB Guidelines”) which are included
in the Department of Justice’s Privacy Act Guide. These OMB Guidelines state that “the
[Privacy] Act did not contemplate permitting relatives and other interested parties to exercise
rights granted by the Privacy Act to individuals after the demise of those individuals.” 40 Fed.
Reg. 28,948, 28,951 (July 9, 1975). Plaintiff goes to great lengths to argue that these Guidelines
are unsupported by the case law and incorrect. However, despite Plaintiff’s arguments that these
Guidelines are wrong, the Court notes that the D.C. Circuit has previously accorded Chevron
deference to the OMB Guidelines in interpreting the Privacy Act. See, e.g., Albright v. United
States, 631 F.2d 915, 919 n.5 (D.C. Cir. 1980) (stating that the OMB Guidelines “are owed the
deference usually accorded interpretation of a statute by the agency charged with its
administration”); Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1461 n.12 (D.C. Cir. 1996)
(same); Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1120 (D.C. Cir. 2007) (same).
Anticipating this argument, Plaintiff also argues that these Guidelines are not entitled to Chevron
deference. Pl.’s Opp’n at 22-26. As support for this proposition, Plaintiff cites to a footnote in
the Supreme Court’s opinion in Doe v. Chao, 540 U.S. 614, 620, 627 n.11 (2004), in which the
majority stated “[t]he dissent does not claim that any deference is due [to the OMB Guidelines],
35
however, and we do not find its unelaborated conclusion persuasive.” Looking beyond the text
of the opinion to the transcript of the oral argument and the briefing in Doe, Plaintiff asserts that
in this footnote, the Supreme Court concluded that the OMB Guidelines interpreting the Privacy
Act are not entitled to Chevron deference because the Privacy Act is a statute administered by
the courts, and not by a federal agency such as OMB. Pl.’s Opp’n at 25-26.
However, although Plaintiff reads the footnote in Doe as rejecting Chevron deference for
the OMB Guidelines, even after Doe, the D.C. Circuit has apparently rejected this reading,
adhering to the position that the OMB Guidelines are entitled to Chevron deference. In
Sussman, a case decided three years after Doe, a unanimous panel of the D.C. Circuit stated that
“Congress explicitly tasked the OMB with promulgating guidelines for implementing the
Privacy Act . . . and we therefore give the OMB Guidelines ‘the deference usually accorded
interpretation of a statute by the agency charged with its administration.’” 494 F.3d 1106, 1120
(D.C. Cir. 2007) (citing Albright, 631 F.2d at 920 n.5). There is no doubt that the panel in
Sussman was aware of the Supreme Court’s opinion in Doe and the discussion of the OMB
Guidelines in that case. Indeed, in its own discussion of the deference owed to the OMB
Guidelines, the Sussman opinion actually cites to Justice Ginsburg’s dissent in Doe. Sussman,
494 F.3d at 1120 n.8 (citing Doe, 540 U.S. at 633 (Ginsburg, J., dissenting)). Faced with this
precedent, this Court can only conclude that that the D.C. Circuit viewed the footnote in Doe as
dicta¸ or at least saw this sentence as not overruling the line of precedent according Chevron
deference to the OMB Guidelines in interpreting the Privacy Act. This Court is bound by the
opinions of both the Supreme Court and the D.C. Circuit and has an obligation to read this body
of case law consistently. Accordingly, where the D.C. Circuit has apparently considered and
determined that a sentence in a Supreme Court footnote does not overrule a consistent line of its
36
own precedent, this Court will decline to revisit that determination. While Plaintiff may
ultimately persuade the D.C. Circuit to reconsider this position, it would be improper for this
Court to take such action in disregard of binding D.C. Circuit precedent. Cf. Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other line of decision,
the Court of Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”).
Accordingly, in light of the OMB Guidelines interpreting the Privacy Act to preclude the
exercise of Privacy Act rights by relatives on behalf of deceased individuals, the Court rejects
Plaintiff’s argument that the State Department was required to process his requests for his
father’s records under the Privacy Act as well as FOIA. The Privacy Act does not speak to the
access rights of relatives of deceased individuals. However, the statute does make explicit
provision for the rights of legal guardians to exercise Privacy Act rights on behalf of children and
the legally incompetent. See 5 U.S.C. § 552a(h) (“For the purposes of this section, the parent of
any minor, or the legal guardian of any individual who has been declared to be incompetent due
to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of
the individual.”). Because of this provision as well as “the overall thrust of the Act – that
individuals be given the opportunity to judge for themselves how, and the extent to which,
certain information about them maintained by Federal agencies is used, and the implicit personal
judgment involved in this thrust”, the OMB Guidelines conclude that “the [Privacy Act] did not
contemplate permitting relatives and other interested parties to exercise rights granted by the
Privacy Act to individuals after the demise of those individuals.” 40 Fed. Reg. at 28,951. The
Court cannot conclude that this interpretation of the Privacy Act is “manifestly contrary to the
37
statute”, Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984), and
accordingly the Court will defer to the agency’s interpretation.
3. Exemption (b)(5)
Plaintiff next challenges the State Department’s withholding of information from
Document PP8 pursuant to Exemption (b)(5) based on the attorney-client privilege. Pl.’s Opp’n
at 27.
The State Department’s declaration states that this document is “an e-mail chain between
Department officials, including attorneys within the Office of the Legal Adviser, dated between
March 15 and March 26, 2012.” Walter Decl. ¶ 55. The declaration further describes the
substance of the e-mail as such: “This e-mail chain begins with a Department attorney advising
his clients of the filing of two new FOIA suits that had recently been brought against the State
Department. Subsequent e-mails contain follow up information from officers located within the
Department’s FOIA program.” Id. ¶ 56. Portions of this document are withheld. As the basis for
withholding this information pursuant to the attorney-client privilege, the declaration states that
“[t]he withheld material reflects a confidential exchange between a Department attorney and his
clients, and is thus exempt from release under the attorney-client privilege portion of FOIA
exemption (b)(5).” Id.
Because the Walter Declaration made no reference to whether this confidential exchange
occurred for the purpose of securing legal advice, the Court requested that Defendants provide
Document PP8 for in camera review. See Minute Order (Mar. 4, 2014); Notice of Filing
Document for In Camera Review, ECF No. [23]. Having reviewed the document in camera, the
Court finds that the description of the document contained in the Walter Declaration is accurate.
Furthermore, the assertion of the attorney-client privilege is appropriate here to protect
38
“confidential communications between an attorney and his client relating to a legal matter for
which the client has sought professional advice.” Mead Data, 566 F.2d at 252. In addition, upon
review, the Court concludes there is no reasonably segregable non-exempt portion of the e-mail
chain not already disclosed.
4. Exemption (b)(6)
Finally, Plaintiff challenges the withholding of information pursuant to Exemption (b)(6)
in Documents X1 and X3. Pl.’s Opp’n at 27-28. Plaintiff states, without specifying how and
when he learned this information, that the State Department has admitted that the withheld
information pertains to Major Eckmann’s family. Id. at 27. However, despite this apparent
admission, the State Department has refused to identify the specific individuals whose privacy
interests are affected. Id. Whitaker challenges this failure to identify these individuals, which he
says stymies his ability to obtain the necessary privacy waivers. Whitaker thus requests that this
Court order State to either release the withheld information or identify the family members to
whom it pertains so that Plaintiff may provide State with the applicable privacy waivers. Id. at
27-28.
Plaintiff cites no case law for the proposition that an agency is obligated to disclose the
identities of those individuals whose privacy interests are implicated in withholding pursuant to
Exemption (b)(6). Rather, it would appear to the Court, as the State Department argues, that “to
inform Plaintiff which individuals the records he seeks relate to would defeat the entire purpose
of Exemption 6 by revealing the very information the exemption protects.” Defs.’ Reply at 13.
FOIA Exemption (b)(6) allows an agency to withhold ‘personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). Based on its declaration, the State Department appears to argue
39
that the identifying information of the individuals implicated constitutes a portion of the
information withheld pursuant to Exemption (b)(6). See Walter Decl. ¶ 52 (“Release of [the
withheld] information would cause a clearly unwarranted invasion of the personal privacy of the
named individual. Further, release would not serve the ‘core purpose’ of the FOIA, as it would
not show ‘what the government is up to.’ Accordingly, this information is properly withheld
under FOIA exemption (b)(6).”); id. ¶ 54 (“The release of personally identifying information of
individuals who are not the subject of Plaintiff’s FOIA request would cause a clearly
unwarranted invasion of the personal privacy of the individuals named.”) (emphasis added).
Accordingly, disclosure of the identities of the individuals whose privacy interests are affected
would undermine the privacy interests served by the exemption. In addition, the Walter
Declaration states that, with respect to these documents, there is “no non-exempt information
that may be segregated and released.” Id. ¶¶ 52, 54. In light of these considerations, which
Plaintiff does not rebut, the Court will neither order Defendants to disclose the withheld
information nor to identify the individuals to whom it pertains.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendants’ [5] Motion for Summary Judgment. Specifically, the Court GRANTS Defendants’
motion with respect to (1) Plaintiff’s claims against Defendant Department of Defense, (2)
Defendant CIA’s invocation of FOIA Exemption (b)(5), (3) the adequacy of Defendant State
Department’s search with respect to its failure to locate records in the Office of Passport
Services, (4) Defendant State Department’s failure to process Plaintiff’s requests for his father’s
records under the Privacy Act, (5) Defendant State Department’s invocation of Exemption (b)(5),
and (6) Defendant State Department’s invocation of Exemption (b)(6). The Court DENIES
WITHOUT PREJUDICE Defendants’ motion with respect to (1) Defendant CIA’s invocation of
40
FOIA Exemption (b)(3) pursuant to the CIA Act of 1949 and the National Security Act of 1947,
and (2) the adequacy of Defendant State Department’s search with respect to its failure to search
for records regarding Major Lawrence Eckmann. An appropriate Order accompanies this
Memorandum Opinion.
Dated: March 10, 2014
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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