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Wheeler v. Central Intelligence Agency

June 4, 2003

JOHN FENTON WHEELER, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This is an action instituted under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), and the Privacy Act, 5 U.S.C. § 552a, concerning the response John Fenton Wheeler received to the request for documents he submitted to the Central Intelligence Agency ("CIA" or "Agency").*fn1 Mr. Wheeler sought "a copy of any records about me maintained at your agency." Compl. Ex. 3. In a letter dated May 4, 2000, the CIA responded that there were "no documents available to [him] under either the FOIA or the Privacy Act of 1974." Compl. Ex. 9 (citations omitted). "By such language, the Agency neither confirmed nor denied the existence or nonexistence of records responsive to [Mr. Wheeler's] request."*fn2 Decl. of William H. McNair ("McNair Decl.") ¶ 6. The letter informed Mr. Wheeler that he could "construe this as a denial on the basis of FOIA exemptions (b)(1) and (b)(3) and Privacy Act exemptions (j)(1) and (k)(1)." Id. (referring to 5 U.S.C. § 522(b)(1), (b)(3) and 5 U.S.C. § 552a(j)(1), (k)(1)). Frustrated by this lack of information, Mr. Wheeler filed this lawsuit.

The CIA has moved for summary judgment, which Mr. Wheeler opposes.*fn3 He seeks to compel the CIA to make specific searches for documents, to conduct discovery, to have the Court review any documents relevant to his request in camera, and to receive partial summary judgment in his favor. For the following reasons, the Court will grant the CIA's motion, deny Mr. Wheeler's motion for summary judgment and to compel, and dismiss the complaint.*fn4

I. BACKGROUND

A. John Fenton Wheeler

Mr. Wheeler was an Associated Press ("AP") correspondent in Cuba from February 13, 1967, to September 8, 1969, when the Cuban government expelled him from the country. He and his wife were escorted by Cuban security aboard a Cubana de Aviacion plane bound for Mexico City. Also on the plane was Humberto Carillo, a former press aide at the Mexican embassy in Havana whom the Cuban government had formally accused of spying for the CIA. Mr. Wheeler was told that his reporting on the Carillo matter and his "hostile campaign against Cuba" caused his expulsion.*fn5 Decl. of John Fenton Wheeler ("Pl. Decl.") ¶ 2. When Mr. Wheeler arrived in Houston from Cuba, he was advised by AP's president and general manager that the CIA and FBI wanted to talk to him. Mr. Wheeler had no desire to speak with either agency and apparently did not do so.

Mr. Wheeler attests that a Cuban defector, Francisco Antonio Teira Alfonso, later testified to the Senate Judiciary Committee's Subcommittee on Internal Security about him. Mr. Alfonso told the Subcommittee that Cuban President Castro was very interested in proving that Mr. Wheeler either had been a CIA agent or had been co-opted by the CIA. Mr. Alfonso also said that a superior of his in Cuba's Directorate of State Security had directed him to frame Mr. Wheeler.

From November 1969 until September 1982, Mr. Wheeler was the bureau chief of AP for Spain and Portugal. In this role, he had two small (and unsuccessful) contacts with a CIA station chief in efforts to obtain information for AP.

B. The CIA's FOIA Process

"The CIA is charged with collecting, processing, analyzing, producing and disseminating foreign intelligence and counterintelligence, and performing other functions and activities related to intelligence affecting the national security as the President or the National Security Council may direct." McNair Decl. ¶ 12. Not surprisingly, the CIA receives a vast number of FOIA requests. According to Mr. McNair, who is the Information Review Officer for the Directorate of Operations at the CIA, when the CIA receives a FOIA request for documents about a subject area, it searches its files and produces all records that are not exempt under the statute. See id. ¶ 10. "In this typical circumstance, the CIA's answer, either to provide or not provide the records sought, actually confirms to the requestor (and the world, for that matter) the existence or non- existence of such CIA records." Id.

Requests for records about specific individuals are handled differently. Person-specific information is neither confirmed nor denied, and is not revealed in any manner by the Directorate of Operations, unless there has already been "an acknowledged overt connection" between the individual and the CIA. Id. ¶ 13. "[T]he CIA could not make a practice of disclosing the existence (or not) of only those files pertaining to persons not having a clandestine relationship, since that would render any non-confirming response a tacit admission of the existence of the very clandestine relationship [it] must keep secret." Id. ¶ 17.

The CIA claims that, if it were to reveal whether it possessed or did not possess records on a particular individual, FOIA could be used to alert hostile forces to the fact of CIA observation or the CIA's inability to penetrate their cover. See id. ¶¶ 19, 20. In the face of multiple person-specific FOIA requests, a foreign intelligence service – or anyone else – could discern which persons might be CIA collaborators. According to the CIA, such information would "greatly aid in eliminating the CIA's network in that country." Id. ¶ 21. It would also jeopardize the lives and safety of any individuals – and their families – who were previously willing to cooperate with the CIA. See id. ¶ 17 ("Covert cooperation with U.S. intelligence is an inherently dangerous venture. Individuals put a great deal at risk by cooperating with CIA officers."). Moreover, release of "the areas and persons of CIA interest would indicate to [a] target how the CIA is allocating its resources," affording the target the opportunity to "array its counterintelligence and security resources most efficiently to frustrate the CIA." Id. ¶ 22.

II. LEGAL STANDARDS

A. Summary Judgment

"In a suit brought to compel production [of records], an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced... or is wholly exempt from [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). A district court conducts a de novo review of an agency's determination to withhold information under FOIA or the Privacy Act. See 5 U.S.C. ยง ...


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