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SCOTT v. UNITED STATES CENT. INTELLIGENCE AGENCY

February 29, 1996

MICHAEL SCOTT, Plaintiff,
v.
UNITED STATES CENTRAL INTELLIGENCE AGENCY AND UNITED STATES DEPARTMENT OF JUSTICE, Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court are the defendants' Motion to Dismiss as well as the parties' Cross-Motions for Summary Judgment in the above-captioned case. This case arises out of the plaintiff's Freedom of Information Act ("FOIA") request seeking CIA and FBI records relating to the plaintiff's deceased father and mother, manuscripts drafted by the plaintiff's father, and a corporation allegedly affiliated with the plaintiff's father. The CIA and FBI (collectively the "government") released certain responsive documents to the plaintiff and withheld other documents, in part and in whole, pursuant to certain exemptions to the FOIA.

 The government has moved to dismiss certain claims on the grounds that the plaintiff has no private cause of action under the Kennedy Assassination Records Collection Act of 1992, 44 U.S.C. § 2107 ("ARCA"), that the plaintiff has failed to exhaust his administrative remedies with respect to claims raised in counts four, six, and seven of the plaintiff's Complaint, and that the government has no records responsive to the claims raised in counts three, four, six, and seven. The government moves for summary judgment on the grounds that the CIA and FBI properly withheld records concerning the plaintiff's father and redacted and withheld portions of the Scott manuscript pursuant to exemptions to the FOIA. The plaintiff does not dispute the government's Motion to Dismiss the claims raised under the ARCA and counts three, four, six, and seven. However, with respect to the remaining counts, the plaintiff argues that the Vaughn index produced by the government is insufficient, that the government's search for records responsive to the plaintiff's FOIA request was inadequate, that the government has refused to release information already in the public domain, and that the plaintiff is entitled to summary judgment that the FOIA exemptions relied upon by the government are inapplicable or, in the alternative, that the plaintiff is entitled to conduct discovery of former and current CIA and FBI employees.

 BACKGROUND

 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. *fn1" 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. *fn2" 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 ...


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