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SPANNAUS v. CIA

December 30, 1993

EDWARD W. SPANNAUS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court are defendants' motion for summary judgment, plaintiff's opposition, defendants' reply, plaintiff's supplemental filing, and defendants' surreply. Also before the Court are numerous affidavits. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its analysis. See Fed. R. Civ. P. 52(a).

 Background

 The present litigation under the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), surrounds the secure voice communications system operated by the Central Intelligence Agency ("CIA"). Since August 1992, the CIA has operated a secure voice communications system between CIA headquarters and CIA overseas field stations to provide field stations located in volatile, hostile or unstable parts of the world with a secure means of speaking directly with headquarters. After learning of this technology through media coverage of the Iran-Contra prosecution, plaintiff submitted identical FOIA and Privacy Act requests to the CIA and the Office of Independent Counsel ("OIC"), requesting any secure voice communications records that mentioned plaintiff, Lyndon H. LaRouche, Jr., Jeffrey Steinberg, Paul Goldstein, the Executive Intelligence Review (or EIR) magazine, the Schiller Institute, New Solidarity, the National Caucus of Labor Committees (or NCLC), or the LaRouche Organization or variations on that name. Plaintiff believes that the secure voice communication tapes or transcripts are likely to contain responsive information because of the involvement of LaRouche and his supporters in foreign policy affairs and intelligence operations.

 Initially, the CIA refused to search the tapes or transcripts on the grounds that they had not been indexed. The OIC also did not search the tapes, and referred plaintiff's request to the CIA, the agency which generated the tapes, pursuant to 28 C.F.R. § 701.12(b). *fn1" After the beginning of this litigation, the CIA and the OIC conducted several searches which did not reveal any responsive material. Additionally, plaintiff modified his request to narrow the class of tapes to be searched for references to the nine individuals and organizations listed in his original request.

 Defendants contend that summary judgment is appropriate on the grounds that the searches thus far conducted are adequate under the FOIA and that further searches would be unreasonably burdensome. Plaintiff counters that the likelihood of the existence of responsive material and the possibility of conducting additional, more particularized searches create a genuine issue of material fact as to the adequacy of the searches.

 Discussion

 To prevail on summary judgment in a FOIA action, as in any other, a defendant agency must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). To meet its burden, an agency must prove that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980).

 Defendants contend that they have discharged their FOIA obligations by conducting adequate searches which revealed no responsive material. The adequacy of an agency's search is governed by a standard of reasonableness, and is dependent on the circumstances of each case. Weisberg v. Department of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Because the agency is often in sole possession of the records and has conducted the information searches itself, the trial judge may rely on agency affidavits in determining whether an agency has met its burden of proof. Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 126 (D.C. Cir. 1982); Goland, 607 F.2d at 352. The affidavits must be relatively detailed, nonconclusory, and submitted in good faith. Goland, 607 F.2d at 352 (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). When an agency relies on affidavits to establish the adequacy of its search, the affidavits should identify the searched files and describe the structure of the agency's file system which makes further searches difficult. Church of Scientology v. IRS, 253 U.S. App. D.C. 78, 792 F.2d 146, 151 (D.C. Cir. 1986). If the requester produces countervailing evidence placing the sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is inappropriate. Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979).

 The Adequacy of the CIA Search

 Over the life of the secure voice communications system, which has been in continuous use since August 1982, over 330,000 hours of tapes and reels have been collected through the use of three different types of recording technology. Declaration of Katherine M. Stricker PP 13-18. To track this information, the CIA maintains two sets of logs that reflect the daily activity that occurs on the secure voice communications system. Id. at P 9. These tape logs are compiled by the CIA's Office of Communications ("OC") and Directorate of Operations ("DO"). Id. The OC logs are produced daily and document all taping activity for a particular day. Id. at P 11. Each OC log contains the date, time, and origin of the calls, the name of the headquarters operator on duty, the general subject of the call, and, in some instances, the names of the individuals participating in a call. Id. These logs do not list the names of persons discussed or provide the detailed substance of the conversation. Id.

 The DO logs are prepared weekly, and are derived from the OC logs. Id. P 12. DO staffers extract references to actual calls from the OC logs, omitting technical information such as references to telecommunications jargon, system testing, and silent periods, and enter these records into a computer system which forms a database of all substantive calls. Id. The database can be searched by entering a name, subject, station location, or date. Id. In addition to the OC and DO logs, other written records which may reflect the contents of recorded conversations are any cables or memoranda produced following secure voice communications and secure voice communications transcribed for purposes of the Iran-Contra investigation. Id. P 9.

 In response to this litigation, the CIA conducted a computer search of the DO logs database for any references to the nine persons or organizations listed in plaintiff's request, as the subjects of discussions or as participants. Id. P 10, 12. This search covered the time period from the institution of the secure voice communications system in 1982, to September 11, 1991, the search cut-off date. Id. P 12, 18. The CIA also searched by name its overall DO records system database for any cables or memoranda making reference to the subjects of plaintiff's request. Id. 10. With respect to the secure voice communications transcribed for purposes of the Iran-Contra investigation, the CIA conducted a line-by-line search of the 2,000 pages of transcripts in its possession. First Supp. Stricker Declaration P 27. No responsive documents were located. Id. The CIA contends that the only way to continue to process plaintiff's July 18, 1991, request would be to conduct a listening search of all of the tapes produced over the life of the system -- approximately 337,857 hours -- which it contends is unreasonably burdensome and not required by the FOIA. Stricker Declaration PP 17, 18.

 In response, plaintiff modified his request by narrowing the subject areas to be searched, the relevant time periods, and geographic locations. *fn2" The CIA maintains that the terms of the new request do not affect the sufficiency and reasonableness of the earlier searches because the earlier searches, conducted on the CIA's records retrieval system, indicate that none of the nine individuals or organizations was ever recorded in the ...


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