the government's Motion to Dismiss the claims raised under the ARCA and counts three, four, six, and seven of the Plaintiff's Complaint. The Court shall deny the parties' Cross-Motions for Summary Judgment, without prejudice to renewing such motions at a later date, as the Court cannot address the merits of the cross-motions at this time without a more specific document index. Accordingly, the Court shall order the government to produce a more specific Vaughn index. Furthermore, the Court shall direct the defendants to clarify certain questions raised by the plaintiff regarding the government's compliance with the FOIA request and to search any additional files likely to turn up the information requested. The Court shall also order the plaintiff to produce a list of information already in the public domain, and the government shall respond accordingly. Finally, the Court shall deny the plaintiff's request for discovery at this time.
Plaintiff Michael Scott filed a FOIA request in 1986 for a manuscript authored by his father, Winston Scott, and confiscated by CIA official James Angleton upon Winston Scott's death. Undisp. Facts PA2; Plaint's Mat. Facts P1. The plaintiff's father was a former official of the CIA and apparently served as the Chief of Station in Mexico City from 1956-69 where he worked with David Atlee Phillips, among others, and monitored Lee Flarvey Oswald's visit to Mexico City.
In response to the plaintiff's 1986 FOIA request, the CIA released portions of a manuscript entitled It Came To Little to the plaintiff and withheld portions pursuant to 5 U.S.C. § 552(b)(1), (3). The CIA informed the plaintiff that the agency was aware of only one copy of the manuscript. The plaintiff did not appeal the CIA's decision to redact the manuscript at that time.
In 1993, the plaintiff sought re-review of the manuscript for potential additional releases. The plaintiff also asked the CIA to comment on the existence of another manuscript allegedly written by Winston Scott and entitled The Foul Foe. As a result, the CIA sent to the plaintiff an additional chapter of the manuscript It Came to Little that the CIA had recently released to the public pursuant to the ARCA. Undisp. Facts PA2. The CIA also informed the plaintiff that the manuscript for It Came to Little was identical to another manuscript withheld by the agency, The Foul Foe. By letter dated February 23, 1994, the plaintiff appealed the CIA's determination not to release any additional portions of the manuscript.
In July 1991, the plaintiff submitted a FOIA request for "any and all information the [CIA] may have in reference" to his father, Winston Scott. Undisp. Facts PA1; Complaint P7. By letter dated May 11, 1993, the plaintiff requested the return of any personal effects of Winston Scott that were confiscated by the CIA. Undisp. Facts PA1. Upon the CIA's failure to respond to the plaintiff's FOIA request, the plaintiff submitted a formal appeal on February 23, 1994. Id. In September 1995, after the plaintiff filed the present litigation, the CIA released to the plaintiff seven documents in full, thirty-eight redacted documents, a redacted copy of the manuscript It Came to Little, and documents previously released to the public under the ARCA.
In July 1991, the plaintiff also submitted a FOIA request to the FBI seeking information concerning the plaintiff's father. Undisp. Facts PB1; Complaint P66. On August 24, 1993, the FBI notified the plaintiff that it would release 259 pages in part or full to the plaintiff and that it would withhold twenty-six pages in their entirety.
On September 30, 1993, the plaintiff appealed the FBI's decision to withhold certain documents and portions of documents. In response, the FBI released an additional seven pages to the plaintiff. Id.
The plaintiff filed suit on April 10, 1995, pursuant to the FOIA and the ARCA, seeking "the disclosure and release of agency records improperly withheld from the plaintiff by the government." In counts one, two, and five, the plaintiff requested that the CIA release his father's manuscript and that the CIA and FBI release all records concerning his father. In counts three, four, six, and seven, the plaintiff sought information from the government regarding his mother and Diversified Corporate Services, a company allegedly operated in Mexico City by the plaintiff's father.
The government filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment, containing two separate sworn declarations of Lee Strickland, Information and Privacy Coordinator for the CIA, relating to the CIA's classification decisions regarding the plaintiff's FOIA request for Winston Scott's manuscript and for records regarding Winston Scott. The government's Motion also contained the sworn declaration of Robert Moran, Special Agent of the FBI, and Richard Davidson, Supervisory Special Agent of the FBI, regarding the FBI's withholding decisions with respect to the plaintiff's FOIA requests directed to the FBI.
The plaintiff filed his Cross-Motion for Summary Judgment on October 30, 1995. The government filed its Reply Memorandum and Opposition on December 12, 1995, and attached a supplemental declaration of Lee Strickland containing a description of the search undertaken by the CIA to comply with the plaintiff's FOIA request. The government filed a Praecipe to Add Supplemental Declaration of Robert Moran and Richard Davidson on December 15, 1995, which addressed the FBI's classification decisions regarding additional documents not covered by the FBI's original declarations. The plaintiff filed its Reply Memorandum on January 16, 1996.
On February 27, 1996, the Court ordered the parties to appear before the Court to address the adequacy of the CIA's search for documents. The plaintiff's counsel provided the Court with a list of files that he alleges were not searched, and the Court informed the parties that it would require the filing of additional pleadings on this matter. The Court also informed the government that its Vaughn filings were inadequate.
I. THE COURT SHALL DISMISS COUNTS THREE, FOUR, SIX, AND SEVEN, AS WELL AS ALL CLAIMS BASED ON THE ARCA, BECAUSE THE COURT LACKS JURISDICTION TO HEAR SUCH CLAIMS.
The plaintiff concedes that he failed to exhaust the administrative remedies available to him regarding his FOIA request for information concerning the plaintiff's mother and a corporation allegedly established by his father, as set forth in counts four, six, and seven of the plaintiff's complaint. Because the plaintiff must exhaust his administrative remedies prior to initiating suit in this Court, the Court lacks jurisdiction to consider those claims. See Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 61 (D.C. Cir. 1990); Dettmann v. Department of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472, 1476 (D.C. Cir. 1986).
Furthermore, the government asserts that it has no records responsive to the claims raised in counts three, four, six, and seven of the plaintiff's Complaint. The plaintiff does not challenge this assertion. Accordingly, the Court lacks jurisdiction to review such claims. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 139, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980) (Federal court lacks authority to order production of records under the FOIA when agency has not withheld responsive records).
Finally, the Court lacks jurisdiction to consider the plaintiff's claims which rely upon the ARCA, because there is no private right of action provided by that statute. See Assassination Archives and Research Center v. Department of Justice, 310 U.S. App. D.C. 117, 43 F.3d 1542 (D.C. Cir. 1995); Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993).
II. THE COURT IS UNABLE TO REVIEW THE GOVERNMENT'S CLASSIFICATION DECISIONS AT THIS TIME BECAUSE THE GOVERNMENT FAILED TO PROVIDE THE COURT WITH AN ADEQUATE VAUGHN FILING.
A. THE GOVERNMENT BEARS THE BURDEN OF JUSTIFYING ITS CLASSIFICATION DECISIONS BY SUBMITTING A DETAILED VAUGHN FILING.
It is well-established that "the mandate of the FOIA calls for broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166, 85 L. Ed. 2d 173, 105 S. Ct. 1881 (1985). However, Congress also recognized "that public disclosure is not always in the public interest" and provided nine exemptions to the FOIA. Id.
The government bases its withholding of records responsive to the plaintiff's FOIA request on numerous exemptions to the FOIA, which permit the withholding of information when the release of such records may threaten national security, thwart law enforcement efforts, or significantly invade personal privacy rights, among other things.
The Court "must make a de novo review of the [government's] classification decision," Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980), and "the government bears the burden of establishing that the exemption applies." Department of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 2019, 124 L. Ed. 2d 84 (1993). Accordingly, the government must file affidavits and an index, often referred to as a "Vaughn filing" or "Vaughn index," to enable the trial and appellate courts to perform this de novo review of the government's classification decision. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974).
The Vaughn filing must be sufficiently detailed so that the Court may "make a rational decision whether the withheld material must be produced without actually viewing the documents themselves . . . ." Dellums v. Powell, 206 U.S. App. D.C. 383, 642 F.2d 1351, 1360 (1980). In King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210 (D.C. Cir. 1987), the Court of Appeals for this Circuit set forth clear guidelines for the government's Vaughn filing, stating that the government affidavits must:
(1) identify the document, by type and location in the body of documents requested; (2) note [the exemption] claimed; (3) describe the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption's purpose; (4) explain how this material falls within one or more of the categories of classified information authorized by the governing executive order; and (5) explain how disclosure of the material in question would cause the requisite degree of harm to the national security.