United States District Court, D. Columbia
September 14, 2005.
ELLYN J. BURNES, Plaintiff,
CENTRAL INTELLIGENCE AGENCY, Defendant.
The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiff, proceeding pro se, brought this action pursuant to
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.
Defendant Central Intelligence Agency ("CIA") has filed a motion
to dismiss or, in the alternative, for summary judgment. Based on
the undisputed facts, the applicable law, and the parties'
submissions, the Court will grant the motion.
On July 8, 2004, Plaintiff sent a FOIA request to the CIA.
Defendant's Motion to Dismiss or, in the Alternative, for Summary
Judgment ("Deft's Mot."), Declaration of Scott A. Koch ("Koch
Decl."), Exhibit ("Ex.") A. Plaintiff requested the following:
(1) documents that provide information regarding any surveillance
of her; (2) the type of surveillance; (3) the reason for the
surveillance; (4) the duration of the surveillance; (5) the
locations of the monitoring; (6) whether other United States
agencies or states were recipients of the information; (7) the
content of all data collected referring to the identity and
activities of Plaintiff under the names Ellyn J. Burnes, Ellyn Burnes Webb, Ellyn B. Webb, Ellyn Jane Webb, and Ellyn J. Webb;
(8) records detailing any warrants issued authorizing
surveillance of Plaintiff; and (9) copies of the warrants. Id.
In a letter dated August 18, 2004, the CIA notified Plaintiff
that it had found no records responsive to her request. Id.,
Ex. F. Plaintiff appealed this determination to the Agency
Release Panel on September 3, 2004. Id., Ex. H. The Agency
Release Panel denied Plaintiff's appeal on November 12, 2004,
stating that it could not identify any information or records
filed under the names she provided. Id., Ex. J. Plaintiff then
filed this action.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56 (c). Material facts
are those that "might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the
Court must draw all reasonable inferences in favor of the
non-moving party. Anderson, 477 U.S. at 255; see also
Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a
motion for summary judgment, however, "may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 248. The non-moving party must do more
than simply "show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the
movant's affidavits will be accepted as being true unless [the
opposing party] submits his own affidavits or other documentary
evidence contradicting the assertion." Neal v. Kelly,
963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner,
689 F.2d 100, 102 (7th Cir. 1982)).
The mere existence of a factual dispute by itself, however, is
not enough to bar summary judgment. The party opposing the motion
must show that there is a genuine issue of material fact. See
Anderson, 477 U.S. at 247-48. To be material, the fact must be
capable of affecting the outcome of the litigation; to be
genuine, the issue must be supported by admissible evidence
sufficient for a reasonable trier of fact to find in favor of the
nonmoving party. See id.; Laningham v. United States Navy,
813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th
Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13
(D.D.C. 1980). In a FOIA case, the Court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations. Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see
also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). Agency affidavits or
declarations must be "relatively detailed and non-conclusory
. . ." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991). Such affidavits or declarations are accorded "a
presumption of good faith, which cannot be rebutted by `purely
speculative claims about the existence and discoverability of
other documents." Id. (internal citation and quotation
Discussion To obtain summary judgment on the issue of the adequacy of the
search for records under FOIA, an agency must show "viewing the
facts in the light most favorable to the requester, that . . .
[it] `has conducted a search reasonably calculated to uncover all
relevant documents.'" Steinberg v. United States Dep't of
Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v.
United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984)). To meet its burden, the agency may submit affidavits or
declarations that explain in reasonable detail and in a
non-conclusory fashion the scope and method of the agency's
search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In
the absence of contrary evidence, such affidavits or declarations
are sufficient to demonstrate an agency's compliance with FOIA.
Id. at 127. The agency must show that it made a "good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested." Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the
adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Oglesby, 920 F.2d at 68.
The Court's inquiry regarding the adequacy of the search
focuses on the search itself, not its results. Weisberg v. DOJ,
745 F.2d at 1485. An agency's failure to find a particular
document does not undermine the determination that the search was
adequate. Wilber v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004);
Nation Magazine v. United States Customs Serv., 71 F.3d 885,
892 n. 7 (D.C. Cir. 1987). "Mere speculation that as yet
uncovered documents may exist does not undermine the finding that
the agency conducted a reasonable search for them." SafeCard
Servs., Inc., 926 F.2d at 1201.
According to Defendant, Plaintiff's FOIA request was processed
in accordance with the CIA's established procedure. Koch Decl., ¶ 21. The CIA's
Information Management Services analyzed the request and
determined which components within the CIA would be reasonably
expected to possess records responsive to plaintiff's request.
Id., ¶ 10. The search was not restricted to records originated
by the CIA, but all records in the appropriate databases. Id.,
¶ 21. The CIA's records search focused on two Directorates, the
Directorate of Operations ("DO") and the Directorate of Support
("DS"). Defendant's Reply in Support of Motion to Dismiss or, in
the Alternative, for Summary Judgment, Second Declaration of
Scott A. Koch ("Koch Second Decl."), ¶ 4.
The DO is the CIA component responsible for the collection of
foreign intelligence information from human sources and contains
information on persons who are of foreign intelligence or
counterintelligence interest to the CIA and other United States
government agencies. Id., ¶ 5. In this case, the CIA conducted
a search of the DO's records systems using all of the names
provided by Plaintiff, including both her maiden and married
names, and also by searching under her date of birth. Id.
The DS is responsible for CIA's administrative matters. Id.,
¶ 6. This component of the CIA maintains records on all current
and former CIA employees and other individuals for whom security
processing or evaluation was required. Id. DS's records system
also includes all security-related documents. Id. The CIA
conducted a search of the DS records systems using all of the
different variations of Plaintiff's name and her social security
number. Id., ¶ 7.
It is apparent from the declarations submitted by the CIA that
it has made a "good faith effort to conduct a search for the
requested records, using methods which reasonably can be expected
to produce the information requested." Moore v. Aspin,
916 F.Supp. 32, 35 (D.D.C. 1996) (citing Oglesby, 920 F.2d at 68). As such, the CIA's
search for Plaintiff's requested records was adequate to fulfill
its obligations under FOIA.
To prevail in a FOIA case, a plaintiff must show that an agency
has (1) improperly (2) withheld (3) agency records. United
States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142
(1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598
(D.C. Cir. 2004). A suit is only authorized under the FOIA against
federal agencies to remedy an agency's improper withholding of
information. Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980); see also
5 U.S.C. § 552(a)(4)(B) & (f)(1). Since Defendant did not withhold any
documents, Plaintiff does not have a viable cause of action under
Based on the foregoing, Defendant's motion to dismiss or, in
the alternative, for summary judgment will be granted. Judgment
will be entered in favor of Defendant. An appropriate order
accompanies this Memorandum Opinion.
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