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ASSASSINATION ARCHIVES & RESEARCH CTR., INC. v. CI

September 11, 1989

ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC., Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE.

 Plaintiff submitted a Freedom of Information Act ("FOIA") request seeking all Central Intelligence Agency ("CIA") information on George Herbert Walker Bush which reflects any relationship between Mr. Bush and the CIA prior to his term as Director of Central Intelligence, as well as any documents regarding the assassination of President Kennedy that were reviewed by Mr. Bush while he was Director of Central Intelligence.

 The case is currently before the Court on cross-motions for summary judgment. Plaintiff has requested the Court to order additional searches, while defendant has filed a motion based on the arguments that further searches would be unreasonably burdensome, and that the responsive documents withheld under the present request were withheld properly under exemptions to FOIA. Defendant claimed the protection of exemptions (b)(1), (b)(3), 5, and 6 of FOIA to withhold these documents and excisions. The Court has inspected the withheld documents in camera.

 Defendant states in its motion that all "searchable material deemed non-exempt under the FOIA has been provided to plaintiff," and has moved for summary judgment on the grounds that plaintiff's FOIA request did not reasonably describe the records sought, and that some documents are being withheld validly under FOIA exemptions (b)(1), (b)(3), (b)(5), and (b)(6).

 With regard to plaintiff's motion that the Court order additional searches, the Court noted that it is the requester's responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested. Yeager v. DEA, 220 U.S. App. D.C. 1, 678 F.2d 315 (D.C. Cir. 1982). The rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters. Therefore, agencies are not required to maintain their records or perform searches which are not compatible with their own document retrieval systems. Blakey v. Department of Justice, 549 F. Supp. 362 (D.D.C. 1982), aff'd 232 U.S. App. D.C. 40, 720 F.2d 215 (D.C. Cir. 1983) (modified on other grounds). "The linchpin inquiry is whether the agency is able to determine 'precisely what records [are] being requested.'" Yeager v. DEA, 220 U.S. App. D.C. 1, 678 F.2d 315, 326 (D.C.Cir. 1982).

 Plaintiff argues that CIA has not conducted a proper search because government agencies under FOIA are required to show that they have conducted a thorough, good faith search, including detailing the scope of the search and the manner in which it was conducted. Weisberg v. Dept. of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365 (D.C.Cir. 1980). Under Weisberg, agency affidavits which "do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized," are insufficient to support summary judgment on the search issue. 627 F.2d at 373.

 Plaintiff argues that even if the Court were to find that the search in this case met the Weisberg standard, it has produced countervailing evidence of the inadequacy of the search, since plaintiff can produce a document which it obtained independently, i.e., a November 29, 1963 memorandum from J. Edgar Hoover to the Director of the Bureau of Intelligence and Research at the State Department, which plaintiff claims would have been among the documents located in a good faith search responsive to its request. Plaintiff correctly points out that even if an agency complies with Weisberg, "the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824 (D.C.Cir. 1979).

 Defendant's response to this argument was to submit a supplemental affidavit detailing the search, and to point out that the legal standard for evaluating a search is not "whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg, 745 F.2d at 1485. While plaintiff argues that the fact that CIA's search did not produce the November 29, 1963 memorandum shows that the search was inadequate, defendant argues that it does not show this, since CIA failed to locate any documents responsive to Item 1 of plaintiff's FOIA request, which asked for "all personnel or other records which reflect a relationship between the CIA and George Herbert Walker Bush . . . prior to his term as Director of Central Intelligence." CIA further argues that the document, which was generated by the FBI and sent to the State Department, with only a copy being sent to the DCI, need not necessarily have been retained or filed at CIA. Finally, even if the document was received and filed at CIA, it need not have been filed in such a manner as to be retrievable by a search looking for information as described in plaintiff's Item 1. Haran Declaration para. 28.

 Plaintiff's motion was based in part on the alleged inadequacy of the affidavit of Lee Carle, which plaintiff argues gives no indication as to which files were searched or by whom, and fails to proved information specific enough to enable plaintiff to challenge the procedures used in the search, for example, whether a computer or manual search was made, or how many components of the CIA were searched. The actual mechanics of the search have been fleshed out adequately in a supplemental declaration.

 Accordingly, the Court will not order additional searches. The breadth of plaintiff's requests is not compatible with the CIA's document retrieval system, and plaintiff must deal with that system as it is. The Court is satisfied by the Haran Declaration that CIA's search met the Weisberg standard for an adequate search within the constraints of the CIA's document retrieval system as it presently exists. Therefore, plaintiff's motion will be denied.

 With respect to defendant's motion for summary judgment: after in camera inspection of the 19 documents withheld in whole or in part, the Court concludes that the exemptions claimed for those documents in the Carle Declaration are claimed legitimately, and that the reasons given in the Declaration are a proper use of the FOIA exemptions. The Court is also ...


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