The opinion of the court was delivered by: HARRIS
This matter is before the Court on defendants' motion for summary judgment filed August 24, 1990, and plaintiffs' motion for partial summary judgment and for an order compelling further searches and Vaughn indices, filed January 9, 1992. Subsequent to the filing of these motions, the defendant agencies agreed to release a substantial number of documents and provide numerous supplemental Vaughn indices, thus prompting the Court to delay ruling on the motions. After the additional releases, the Court requested that the parties file supplemental memoranda indicating which issues raised in their dispositive motions were still contested. The supplemental memoranda significantly narrowed the remaining points of contention. Upon consideration of the original motions for summary judgment as modified by the supplemental pleadings, and the entire record, the Court grants defendants' motion for summary judgment in part and denies it in part, and grants plaintiffs' motion for partial summary judgment and further searches and Vaughn indices in part and denies it in part, in accordance with the reasoning set forth below.
On April 1, 1985, six of the seven plaintiffs in this action, individuals associated with the weekly magazine Executive Intelligence Review, submitted Freedom of Information Act ("FOIA") requests to five federal agencies: the United States Secret Service ("Secret Service"), the United States Customs Service ("Customs"), the Federal Bureau of Investigation ("FBI"), the United States Attorney's Office for the Southern District of New York ("USAOSDNY"), and the Department of State.
An identical request was made by plaintiff Jeffrey Steinberg to the Central Intelligence Agency ("CIA") in April 1987. Each request sought the following information:
1. Any and all documents pertaining to CYRUS HASHEMI, an Iranian citizen formerly residing in the United States . . . .
2. Any and all documents pertaining to the FIRST GULF BANK AND TRUST (West Indies) LIMITED, previously known as the FIRST ARABIAN BANK AND TRUST before October 5, 1979. . . .
3. Any and all documents, from October 12, 1979, to January 20, 1981, pertaining to the taking of 53 American hostages in Iran as well as negotiations to secure their release, which refer to CYRUS HASHEMI and/or ABOLFAZL "BAHRAM" NAHIDIAN.
4. Any and all documents pertaining to the assassination of ALI AKBAR TABATABAI which occurred on July 22, 1980, . . . which refer to CYRUS HASHEMI and/or ABOLFAZL "BAHRAM" NAHIDIAN.
5. Any and all documents, from 1979 to the present, referring to actual or potential violations of law regarding the export of weapons and military spare parts to Iran, which refer to CYRUS HASHEMI, CYRUS DAVARI, REZA HASHEMI and/or JOHN STANLEY POTTINGER.
6. Any and all documents pertaining to the loss or disappearance of tape recordings of meetings between JOHN STANLEY POTTINGER and CYRUS HASHEMI and/or REZA HASHEMI, as referred to in the enclosed article from the Washington Post dated July 18, 1981.
In a nutshell, plaintiffs sought information relating to the involvement of the above-named individuals in the so-called "October Surprise" allegations -- the charges that the Reagan/Bush campaign made a secret deal with Iranian leaders during the 1980 campaign to delay the release of American hostages until after the election.
Each of the defendant agencies acknowledged plaintiffs' FOIA requests. Most of the agencies immediately processed the relevant request and searched their files for responsive records.
The agencies then either released the documents or withheld them, in whole or in part, pursuant to a FOIA exemption. In certain cases, the agencies refused to confirm or deny the existence of records mentioning the named individuals, contending that to do so would violate the individuals' personal privacy. Each agency informed plaintiffs of their right to appeal the agency's final decision. In most, but not all, cases, plaintiffs filed an administrative appeal of the agency decision, which was ultimately rejected.
Plaintiffs filed the instant action on April 1, 1987.
In the ensuing years, the agencies have continued to release responsive documents, re-evaluate their claimed exemptions, and submit declarations supporting documents which were withheld or redacted, both voluntarily and pursuant to court order.
Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is available to a defendant in a FOIA case if the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. Miller v. Department of State, 779 F.2d 1378, 1382 (8th Cir. 1985) (citing Weisberg v. Department of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1350 (D.C. Cir. 1983) [hereinafter "Weisberg I "]). In order to discharge its FOIA obligations, the agency must demonstrate 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. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978) (quoting National Cable Television Ass'n, Inc. v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973)), cert. denied, 445 U.S. 927 (1980).
A. Executive Order Governing Exemption 1 Claims
Several of the agencies withheld information in the interests of national security pursuant to Exemption 1 of the FOIA. Exemption 1 provides that the mandatory disclosure provisions of the FOIA do not apply to matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Thus, the classification standard to be applied depends on the relevant Executive Order. See King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 214 (D.C. Cir. 1987); Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C. Cir. 1980).
In this case, the agencies relied upon Executive Order 12356 when making decisions regarding the classified status of the documents. See, e.g., Declaration of Katherine M. Stricker PP 8-11 (Oct. 18, 1991) [hereinafter "Stricker Decl."]; Declaration of Richard D. Davidson P 3 (Apr. 29, 1993); see also Exec. Or. 12,356, 47 Fed. Reg. 14874 (1982). On April 17, 1995, President Clinton signed a new Executive Order on national security classification, Executive Order 12,958. See Exec. Order No. 12,958, 60 Fed. Reg. 19825 (1995). Plaintiffs contend that the agencies should be ordered re-review their Exemption 1 claims under Executive Order 12,958.
The D.C. Circuit has fashioned a "two-tiered" approach to determine which Executive Order a reviewing court should apply in evaluating an agency's Exemption 1 claims. See King, 830 F.2d 210 at 217. As a general rule, a reviewing court should assess the propriety of an Exemption 1 classification decision "in terms of the executive order in force at the time the agency's ultimate classification decision is actually made." Id.; see also Bonner v. Department of State, 289 U.S. App. D.C. 56, 928 F.2d 1148, 1152-53 (D.C. Cir. 1991) (holding that an agency's decision to withhold documents "ordinarily must be evaluated as of the time it was made"). A court may only insist that the government reclassify documents to comply with a superseding Executive Order if it "remand[s] the case to the agency to correct a deficiency in its classification determination." King, 830 F.2d at 217.
The Court, therefore, will evaluate the propriety of the agencies' Exemption 1 withholdings under Executive Order 12356 unless the court finds that the agencies improperly withheld information pursuant to Exemption 1, in which case, on remand for reclassification, the agencies will be ordered to evaluate the documents under Executive Order 12,958.
See id.; see also Fulbright & Jaworski v. Department of Treasury, 545 F. Supp. 615, 619 (D.D.C. 1982).
B. Central Intelligence Agency
Plaintiffs contend that the CIA has not accounted for documents that it referred to the United States Information Agency, the National Security Agency, and the Department of the Army. Defendants admit that the CIA has referred a total of seven documents to those three agencies and that deletions from those documents have not been defended in previous filings. Defendants, therefore, are directed to submit declarations to justify the redactions from the referred documents.
2. "Twilight Zone" Documents
Plaintiffs next ask the Court to require the CIA to account for certain documents that plaintiffs believe exist but which have not been produced. Plaintiffs allege that the CIA did not produce four CIA documents which were provided on June 21, 1983, to plaintiffs in the civil suit Hashemi v. Campaigner Publications, 572 F. Supp. 331 (N.D. Ga.), by the United States Attorney for the District of Columbia, or four documents which were declassified and released as part of the Report of the Congressional Committees Investigating the Iran/Contra Affair (1987).
Plaintiffs' claim amounts to a contention that the CIA did not adequately search its records for responsive documents. Defendants counter that the CIA conducted a reasonable search for these documents, which satisfied its FOIA obligation.
Under the FOIA, an agency has a duty to conduct a reasonable search for responsive records. Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990); Weisberg I, 705 F.2d at 1350. The burden is on the government to demonstrate that it has thoroughly searched for the requested documents where they might reasonably be found. Krikorian v. Department of State, 299 U.S. App. D.C. 331, 984 F.2d 461, 468 (D.C. Cir. 1993); Weisberg I, 705 F.2d at 1351. An agency is not, however, "required to reorganize its files in response to a plaintiff's request in the form in which it was made." Church of Scientology v. IRS, 253 U.S. App. D.C. 78, 792 F.2d 146, 150-151 (D.C. Cir. 1986) (internal quotation omitted); see also McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1100 (D.C. Cir.), modified in part, 229 U.S. App. D.C. 148, 711 F.2d 1076 (D.C. Cir. 1983).
An agency may prove the reasonableness of its search through affidavits of responsible agency officials which are relatively detailed, nonconclusory, and submitted in good faith. Steinberg v. Department of Justice, 306 U.S. App. D.C. 240, 23 F.3d 548, 551 (D.C. Cir. 1994); see also Nation Magazine v. United States Customs Serv., 315 U.S. App. D.C. 177, 71 F.3d 885, 890 (D.C. Cir. 1995) (affidavits should set forth search terms and the type of search performed, and aver that all files likely to contain material were searched). Once the agency has shown by convincing evidence that its search was reasonable, the burden shifts to the requester to show that the search was not in fact in good faith. Weisberg I, 705 F.2d at 1351.
In this case, the CIA furnished affidavits by a responsible officer, Katherine M. Stricker, the Information Review Officer for the Directorate of Operations at the CIA, setting forth the search procedures used to respond to plaintiff Steinberg's request. Stricker's affidavits explain that the agency immediately conducted a search of CIA records for items 1 and 2 of plaintiff Steinberg's FOIA request. Stricker Decl. P 3. The CIA was not, however, able to search items 3, 4, 5, and 6 as written; such a search would have required "extensive research cross-indexing particular bits of information to specific events, incidents or activities" because the CIA records systems are not indexed in a manner such that responsive records could have been located. Id. The CIA advised Steinberg that it could not conduct searches in the manner requested, but offered to conduct a broader search for all information it might have indexed to the names of various individuals and entities listed in his request. Id. Steinberg never responded. Id. Because the CIA did not receive a response, it did not immediately make a further search. On March 23, 1992, however, the CIA conducted another search for records indexed to the names of individuals listed in Steinberg's FOIA request, such as "Reza Hashemi, Abolfazl 'Bahram' Nahidian, Cyrus Davari, Stanley Pottinger and Ali Akbar Tabatabai." Supplemental Declaration of Katherine M. Stricker P 3 (February 26, 1993) [hereinafter "Stricker II Decl."]. These searches produced a total of 326 responsive documents, but not the "twilight zone" documents.
Based on the Stricker affidavits, the Court finds that the CIA has met its burden to demonstrate that it has thoroughly searched for the requested documents where they might reasonably be found. See Krikorian, 984 F.2d at 468; Weisberg I, 705 F.2d at 1351. Thus, summary judgment on the issue of the adequacy of the search is proper unless plaintiffs can contradict the CIA's account of the search procedure or raise evidence of the CIA's bad faith. See, e.g., Founding Church of Scientology of Washington D.C., Inc. v. NSA, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979); Goland, 607 F.2d at 352-355; Miller, 779 F.2d at 1384. Plaintiffs have attempted to prove the CIA's bad faith by proffering evidence of the existence of the "twilight zone" documents.
The fact that the CIA's search failed to turn up eight documents is not, however, sufficient to contradict the reasonableness of the CIA's search without more evidence of bad faith. See Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 952-53 (D.C. Cir. 1986) ("[A] search is not unreasonable simply because it fails to produce all relevant material; no [large] search . . . will be free from error."); Miller, 779 F.2d at 1385 (An agency "is not required . . . to account for documents which the requester has in some way identified if it has made a diligent search for those documents in the places in which they might be expected to be found."). The fundamental question is "not 'whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" Steinberg, 23 F.3d at 551 (quoting Weisberg v. Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C. Cir. 1984) [hereinafter Weisberg II ]) (emphasis omitted). "The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it." Miller, 779 F.2d at 1385. Although the CIA has not been able to find the supposed "twilight zone" documents, it is clear that the CIA's search efforts were reasonably calculated to track them down.
Plaintiffs' evidence is not sufficient to rebut the demonstrated adequacy of the CIA's search, and therefore defendants are entitled to summary judgment on this issue. See Weisberg I, 705 F.2d at 1351-52; Goland, 607 F.2d at 352.
After processing Steinberg's FOIA request, the CIA determined that virtually all of the documents should be withheld pursuant to Exemption 1 of the FOIA. The CIA claims that its invocation of Exemption 1 is proper because the documents withheld are properly classified in accordance with Executive Order 12356. As previously discussed, Exemption 1 of the FOIA protects from mandatory disclosure records that are "specifically authorized under 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. § 552(b)(1). Plaintiffs dispute the CIA's reliance on Exemption 1. As an initial matter, plaintiffs argue that the CIA's Vaughn index provides an insufficient basis for the Court to evaluate the agency's Exemption 1 claims. In addition, plaintiffs claim that the CIA has improperly invoked Exemption 1; they argue that the CIA was not concerned about national security when it withheld the documents, but rather that the CIA improperly classified the information in order to prevent embarrassment to the government.
The Court reviews de novo all exemption claims, and the agency bears the burden of justifying its decision to withhold requested information. 5 U.S.C. § 552(a)(4)(B); King, 830 F.2d at 217. An agency may meet its burden by filing detailed affidavits describing the material withheld and why it falls under the exemption claimed. King, 830 F.2d at 217; PHE, Inc. v. Department of Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 250 (D.C. Cir. 1993); Hayden v. NSA, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980). Because Exemption 1 deals with national security issues, the Court gives substantial weight to detailed agency explanations. Krikorian, 984 F.2d at 464; Miller v. Casey, 235 U.S. App. D.C. 11, 730 F.2d 773, 776 (D.C. Cir. 1984); see also S. Rep. No. 1200, 93d Cong., at 12 (2d Sess. 1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290. The affidavits are only entitled to this extra weight, however, if:
(1) The agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed, and (2) the affidavits are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency.
King, 830 F.2d at 217 (internal citations omitted).
The threshold issue, therefore, is whether the CIA's Vaughn index is sufficient to allow the Court to evaluate the Exemption 1 claims. Id. at 819. The Court concludes that, in light of the Court of Appeals' decision in King, the CIA's current Vaughn index is insufficient to allow the Court to engage in such an evaluation. Therefore, the CIA is directed to file a supplemental Vaughn index more specifically cross-referencing the reasons that each document is being withheld or redacted pursuant to Exemption 1.
Where several paragraphs are referenced for a particular document, the Court requests clarification as to whether each of those paragraphs is relevant to the particular document.
If only some of the referenced paragraphs are relevant, the Court requests that the CIA reference only such paragraph(s). See King, 830 F.2d at 224-225. Finally, it would be helpful if the paragraphs containing more than one explanation were broken into separate paragraphs so that they may be specifically cross-referenced.
See id. at 221-223 & nn.92-94; Scott v. CIA, 916 F. Supp. 42, 47-49 (D.D.C. 1996). In light of this request, the Court reserves judgment on whether the CIA's Exemption 1 claims are valid until the CIA has submitted a supplemental Vaughn index in compliance with King, and plaintiffs have had an opportunity to refine their objections based on the new information.
Plaintiffs have also challenged the CIA's decision to withhold six documents pursuant to the "deliberative process privilege" incorporated in Exemption 5 of the FOIA.
See 5 U.S.C. § 552(b)(5). Defendants claim that the CIA's Vaughn index clearly demonstrates that the CIA properly asserted the Exemption 5 deliberative process privilege with respect to the six documents at issue, and thus defendants are entitled to summary judgment. The Court agrees with defendants with regard to Documents 90 and 160, but denies defendants' request for summary judgment on the remaining documents.
Under Exemption 5, an agency may withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The exemption incorporates the government's common law privileges against discovery in litigation, including the deliberative process privilege which "protects the 'deliberative or policymaking processes' of governmental agencies." Access Reports v. Department of Justice, 288 U.S. App. D.C. 319, 926 F.2d 1192, 1194 (D.C. Cir. 1991); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975).
In order to invoke the deliberative process privilege, an agency must prove that the document withheld is both predecisional and deliberative. See Mapother v. Department of Justice, 303 U.S. App. D.C. 249, 3 F.3d 1533, 1537 (D.C. Cir. 1993); Petroleum Info. Corp. v. Department of the Interior, 298 U.S. App. D.C. 125, 976 F.2d 1429, 1434 (D.C. Cir. 1992). A document is predecisional if it was created "antecedent to the adoption of an agency policy." Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc). A document is "deliberative" if it "makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975); see also Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980) (holding that a document is deliberative if it "reflects the give-and-take of the consultative process"). To achieve summary judgment on this issue, the CIA must identify the deliberative process involved and the role played by each document in the course of that process.
Coastal States, 617 F.2d at 868.
The CIA is entitled to summary judgment on Document 90, two pages of undated notes "containing a series of questions and issues which were to be addressed by Agency policy makers in arriving at a decision." Stricker Decl. at p. 89. It is clear from this description that the document is predecisional and that it was created to assist in the deliberative process. Plaintiffs argue that the document is not "deliberative" because, although the questions were designed to be used in reaching a decision, the declaration indicates that they were never actually used. Plaintiffs' argument overlooks the fact that the key question in evaluating the deliberative process privilege is whether disclosure of the material would discourage candid discussion within an agency. Petroleum Info., 976 F.2d at 1434; Access Reports, 926 F.2d at 1195. Even assuming, as the Court must in evaluating a motion for summary judgment, that the questions were never used, at the time they were written the author did not know that his or her work would not be considered. If the author had known that the notes discussing the proposed questions and issues would be subject to FOIA disclosure if not actually used, the author likely would have been more cautious in what he or she recommended. See Access Reports, 926 F.2d at 1196. Moreover, even though the questions were never used, their disclosure may expose the thought process of CIA officials in the deliberative process by illustrating the possible course of the CIA's reasoning. See Petroleum Info., 976 F.2d 1429 at 1434 (noting that even hard facts may be withheld pursuant to the deliberative process exemption if their disclosure would "expose the deliberative process within an agency"); id. at 1438 (noting that it is proper not to disclose information which "if revealed, would unveil the agency's reasoning by showing what it considered relevant (and irrelevant)"). Document 90, therefore, was properly withheld by the CIA pursuant to Exemption 5 of the FOIA.
Summary judgment is also appropriate for Document 160, a note with a routing sheet dated December 19, 1985. Information in the note "discusses deliberations by Government officials in examining policy concerning contacts with Mr. Hashemi." Stricker Decl. at pp. 121-122. This description indicates that the document describes the decision-making process undertaken by the CIA when it was considering the propriety of contacting Mr. Hashemi -- a policy decision by the CIA. As such, it falls squarely within Exemption 5.
The remainder of the challenged Exemption 5 claims are not, however, appropriate for summary judgment. With respect to Documents 62 and 201, the CIA has failed to identify the deliberative process involved and the role played by the documents in that process. Coastal States, 617 F.2d at 868. The first Stricker declaration states that Document 62 "mentions" a proposed draft of a cable which contains deliberative material. Stricker Decl. at p. 72. A document just mentioning a proposed draft cannot be properly characterized as "reflecting the give-and-take of the consultive process." Coastal States, 617 F.2d at 866. Similarly, Document 201 was withheld because it "discusses legal actions being considered concerning Hashemi." Stricker Decl. at p. 139. The Court is mindful that the deliberations leading to a decision to initiate, or to forego, legal action is within the scope of Exemption 5. See Senate of the Commonwealth of Puerto Rico v. Department of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 585 n.38 (D.C. Cir. 1987). The CIA's Vaughn index, however, is not clear as to whether the document is an evaluation of the legal status, in which case it would be protected, or an instruction from a senior to a junior official as to what legal action should be taken -- a final decision which does not merit Exemption 5 protection. See Sears, 421 U.S. at 152-155; Access Reports, 926 F.2d at 1195. Therefore, if the CIA wishes to continue asserting Exemption 5 with respect to these documents, it must more fully describe the deliberative process involved.
Summary judgment is also not available for Documents 140 and 141. These documents include "discussions" about negotiations with Hashemi's lawyer. Stricker Decl. at pp. 112-113. The Court of Appeals has made it clear that, although documents which reveal an agency's "internal self-evaluation" of negotiations fall within Exemption 5, factual information about negotiations between an agency and an outside party does not. Mead Data Central, Inc. v. Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 257 (D.C. Cir. 1977); see also Senate of Puerto Rico, 823 F.2d at 587. A claim of secrecy for a proceeding between an agency and an outside party does not implicate the policy objectives which Exemption 5 is designed to serve: avoiding premature disclosure of agency decisions and encouraging the free exchange of ideas among administrative personnel. See Senate of Puerto Rico, 823 F.2d at 587; Mead Data, 566 F.2d at 257-258. It is impossible to tell from the CIA's Vaughn index whether Documents 140 and 141 are evaluations of the negotiation process or factual descriptions. The CIA must provide more detailed information about the content of these documents, assuming it wishes to continue to assert Exemption 5.
5. Plaintiffs' Request for a Reno Guidelines Review
Plaintiffs claim that the parties agreed to a re-review of all CIA documents under the 1994 Reno guidelines, a memorandum by Attorney General Janet Reno expressing a Clinton administration policy favoring disclosure. Although defendants claim, and plaintiffs do not appear to dispute, that the memorandum created no rights in individual litigants, plaintiffs insist that they are entitled to such review because defendants agreed to it. The Court simply does not have a basis upon which to evaluate this claim. Plaintiffs proffer no evidence of this alleged agreement. Defendants do not address any agreement, or the effect such agreement would have on their duty to re-review the CIA documents. Due to the state of the record, the Court cannot evaluate the Reno review issue at this time. If ...