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Roman v. Dailey

U.S. District Court, District of Columbia


May 08, 1998

GILBERT ROMAN, PLAINTIFF, V. J. R. DAILEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Paul L. Friedman, United States District Judge.

Defendants' motion to dismiss or, in the alternative, for summary judgment [15] treated as a motion for summary judgment GRANTED; plaintiff's motions for a Vaughn Index [17], production of documents [20], the release of information [21], and to enter a decision or summary judgment [25] DENIED; and judgment entered in favor of the defendants. All other pending motions denied as moot.

The opinion of the court was delivered by: PAUL L. FRIEDMAN

MEMORANDUM

Plaintiff brought this action to challenge the responses he received from three federal agencies from whom he requested records under the Freedom of Information Act, 5 U.S.C. at 552. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. Plaintiff, proceeding pro se, responded to defendants' motion. Having reviewed the complaint, defendants' motion, plaintiff's responses and the entire record herein, and the Court having considered the declarations submitted by defendants, the Court will treat defendants' motion as a motion for summary judgment and will grant the motion.

I. BACKGROUND

Plaintiff Gilbert Roman, a state prisoner incarcerated at the Riverview Correctional Facility in Ogdensburg, New York, sent letters to the National Aeronautics and Space Administration ("NASA"), the National Reconnaissance Office ("NRO"), and the Central Intelligence Agency ("CIA"), requesting records related to himself and his parents, and various information about an "8X spy satellite program" and satellites able "to read the pulses and patterns of the human brain." See Defendants' Statement of Material Facts As To Which There Is No Genuine Issue ("Defs.' Stmt."), PP 1, 7, 16, and Exhibit ("Exh."), 1. *fn1 NASA responded by stating that it had no records responsive to plaintiff's request. Declaration of Mark R. J. Borsi ("Borsi Decl."), P 4; Defs.' Stmt., Exhibit 2. The NRO gave a response similar to NASA's, except that with respect to all requests regarding satellites it stated that it could neither confirm nor deny that any responsive records exist. Declaration of Barbara E. Freimann ("Freimann Decl."), PP 6-9. The CIA also denied plaintiff's request in part, providing a "neither confirm nor deny" response similar to the NRO's. Declaration of Lee S. Strickland ("Strickland Decl."), PP 6-12. Plaintiff appealed each of these responses; his appeals were denied and he then filed this action.

II. DISCUSSION

Before addressing the adequacy of each defendant's declaration in support of the motion, it is appropriate to first deal with plaintiff's primary and overarching argument that he needs the documents requested to support his petition for pending in another court. That fact, however, does not give plaintiff any greater rights under the FOIA than any other person would have. The merits of an agency's FOIA determinations do not rest on the identity of the requester or the purpose for which the information is intended to be used. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 770-71, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). Rather, records, if not properly exempt, must be made available to "any person." 5 U.S.C. at 552(a)(3). Thus, plaintiff has no greater or lesser rights to the requested information than any other person.

A. National Aeronautics and Space Administration

NASA conducted a search of its central agency-wide record system, and the Directors of Security for each NASA center searched their local records for documents related to plaintiff, his parents, and an "8x spy satellite program." Borsi Decl., PP 3, 4. No responsive records of any kind were found. Id., P 4. Plaintiff argues that NASA's search for responsive records was inadequate.

The FOIA does not require an agency to conduct an exhaustive search for all documents responsive to a request, but rather a reasonable search for requested records using "methods reasonably expected to produce the information requested." Oglesby v. United States Dep't of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). "In the absence of countervailing evidence or apparent inconsistency of proof, affidavits [or declarations] that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA." Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982). See The Nation Magazine v. United States Customs Service, 315 U.S. App. D.C. 177, 71 F.3d 885, 890 (D.C. Cir. 1995).

Plaintiff challenges the adequacy of NASA's search because it did not uncover information about an "8x spy satellite program" that he claims is available in public sources. The public source plaintiff chiefly relies on for this argument, a book entitled USA IN SPACE, does not support his claim. That book's discussion of spy satellites details their military development and use since 1959, but makes no mention of an "8x spy satellite program" or any satellites with the ability "to read the pulses and patterns of the human brain." Defs.' Stmt., Exh. 1 (Plaintiff's FOIA Request); see USA IN SPACE 735-738 (Frank N. Magill & Russell R. Tobias eds., 1st ed. 1996). "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." SafeCard Services, Inc. v. Securities and Exchange Comm'n, 288 U.S. App. D.C. 324, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Presented with plaintiff's FOIA request, and there being no contrary evidence of the existence of responsive records and no evidence of agency bad faith, the Court concludes that NASA's search of its files was adequate and its response sufficient.

B. National Reconnaissance Office

Plaintiff does not make any challenges specific to the NRO's declaration. The NRO searched appropriate databases and hardcopy records from "each internal NRO component office that could reasonably be expected to have responsive records" and found no records regarding plaintiff. Freimann Decl. P 8. The Court finds this to be an adequate search for documents responsive to plaintiff's requests regarding himself.

Plaintiff also asked the NRO for the annual budget for an "8x spy satellite program" and all other remote sensing programs, biographical information on personnel assigned to the 8x spy satellite program, and the number of satellites orbiting the earth with the capability to read "the pulses and patterns of the human brain." Freimann Decl., PP 6-7. In response, the NRO stated that it could neither confirm nor deny the existence of records responsive to these requests, because the existence or non-existence of the information would be classified, and because acknowledgement of the existence or nonexistence of the information [regarding an 8x spy satellite program] could reasonably be expected to result in the pinpointing and possible compromise of important intelligence operations and significant scientific and technological developments relating to national security.

Freimann Decl., PP 9, 10. In denying plaintiff's FOIA request, the NRO invoked Executive Order 12951 and FOIA Exemption 1. Id., PP 9-14.

Exemption 1 of the FOIA protects from disclosure records that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . [are] in fact properly classified pursuant to such Executive order." 5 U.S.C. at 522(b)(1). Courts recognize that agency affidavits invoking Exemption 1 are "entitled to 'the utmost deference,'" so long as they are reasonably detailed. Taylor v. Dep't of the Army, 221 U.S. App. D.C. 325, 684 F.2d 99, 109 (D.C. Cir. 1982), quoting Halkin v. Helms, 194 U.S. App. D.C. 82, 598 F.2d 1, 9 (1978); see Halperin v. Central Intelligence Agency, 203 U.S. App. D.C. 110, 629 F.2d 144, 147-48 (D.C. Cir. 1980). "The Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects (sic) might occur as a result of public disclosures of a particular classified record." Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981).

Records regarding an agency's intelligence activities are among those records expressly made secret by an Executive Order in the interest of national security. Executive Order 12958 "prescribes a uniform system for classifying, safeguarding, and declassifying national security information." Exec. Order No. 12958, at 1.5(c), 60 Fed. Reg. 19,825 (1985). Plaintiff's requests of an intelligence-gathering agency for information regarding spy satellites is covered by this Executive Order and therefore is protected from disclosure under Exemption 1.

Where requested information is protected from disclosure under Exemption 1, the agency may properly respond by declining either to confirm or deny whether responsive records exist. See Phillippi v. CIA, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1011 (D.C. Cir. 1976). The NRO's declaration is specific as to what type of information was withheld, the applicability of Executive Order 12958 to the information, and the invocation of Exemption 1. See Freimann Decl., PP 6-7, 9-14. There is no evidence of agency bad faith and there is no contrary evidence in the record. The Court therefore concludes that the NRO properly invoked Exemption 1. See Miller v. Casey, 235 U.S. App. D.C. 11, 730 F.2d 773, 776-77 (D.C. Cir. 1984).

C. Central Intelligence Agency

The CIA's response to plaintiff's FOIA request was similar to that of the NRO. The CIA located no records regarding plaintiff other than his prior FOIA requests, which were provided to him. Srickland Decl., P 13. The bulk of plaintiff's requests sought the names and biographical profiles of all CIA personnel ever assigned to the development of satellites for the CIA, especially an "8x spy satellite," the cost and capabilities of any spy satellites, and biographical information regarding persons who had worked on any such satellites. Id., P 4. The CIA denied these requests in whole, citing FOIA Exemptions 1 and 3. Id., PP 8, 10.

Plaintiff's requests of the CIA for information regarding spy satellites, like those addressed to the NRO, are clearly covered by Executive Order No. 12958 and thus protected from disclosure under Exemption 1. The CIA's response, declining to either confirm or deny whether responsive records exist, was sufficient. See Phillipi v. CIA, 546 F.2d at 1011.

The CIA's refusal to disclose the existence of responsive records also was justified under Exemption 3 which exempts from disclosure records that are specifically exempted from disclosure by statute, provided that such statute "(A) [requires withholding] in such a manner as to leave no discretion on the issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. at 552 (b)(3); see also Senate of Puerto Rico v. United States Dep't of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 582 (D.C. Cir. 1987). The CIA informed plaintiff that it could not provide a response to his requests concerning agency personnel and spy satellites pursuant to the National Security Act of 1947, the Central Intelligence Agency Act of 1949, and the CIA Information Act. See Strickland Decl., PP 8, 10.

The National Security Act of 1947 charges the Director of the CIA with "protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. at 403-3(c)(6). In furtherance of that responsibility, Section 6 of the Central Intelligence Agency Act of 1949 exempts the CIA from provisions of any law "which require[s] publication or disclosure of the organization, functions, names, official titles, salaries or numbers of personnel employed by the Agency." 50 U.S.C. at 403g. Therefore under Exemption 3 plaintiff is not entitled to information regarding agency personnel and spy satellites or information that would lead to the disclosure of such information. Blazy v. Tenet, 979 F. Supp. 10, 23 (D.D.C. 1997) (citing cases). Likewise, plaintiff's requests concerning spy satellites were properly denied under the CIA Information Act which exempts records involving a "special activity" or a "covert action." Hunt v. Central Intelligence Agency, 981 F.2d 1116, 1121 (9th Cir. 1992). The CIA therefore properly responded to plaintiff's requests concerning its personnel and any spy satellite programs by neither admitting nor denying the existence of such information. Defendants' motion for summary judgment therefore must be granted.

An Order and Judgment consistent with this Memorandum Opinion is entered this same day.

SO ORDERED.

PAUL L. FRIEDMAN, United States District Judge

DATE: 5/8/98

ORDER AND JUDGMENT

This case is before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment. For the reasons stated in the Memorandum Opinion issued this day, it is hereby, ORDERED that defendants' motion to dismiss or, in the alternative, for summary judgment [15] is treated as a motion for summary judgment and is GRANTED; it is FURTHER ORDERED that plaintiff's motions for a Vaughn Index [17], production of documents [20], the release of information [21], and to enter a decision or summary judgment [25] are DENIED; and it is FURTHER ORDERED that judgment is entered in favor of the defendants. All other pending motions are denied as moot. This case is removed from the docket of this Court. This is a final appealable order. See Fed. R. App. P. 4(a). SO ORDERED.

PAUL L. FRIEDMAN, United States District Judge

DATE: 5/8/98


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