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WHEELER v. UNITED STATES DEPARTMENT OF JUSTICE

September 30, 2005.

JOHN FENTON WHEELER Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al.[fn1] Defendants.



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

*fn1 The Central Intelligence Agency ("CIA") was initially the first-named defendant in this suit. By memorandum opinion dated June 4, 2003, the Court dismissed the FOIA complaint against the CIA. Wheeler v. CIA, No. 02-0604 (RMC), Memorandum Opinion (D.D.C. June 4, 2003). The parallel allegations against the FBI were finally briefed in full on June 5, 2005, and are now ready for decision.

MEMORANDUM OPINION

In this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a, John Fenton Wheeler challenges the adequacy of the response of the Federal Bureau of Investigation ("FBI") to his FOIA request. Mr. Wheeler responds to the Government's motion for summary judgment with a cross motion for summary judgment. The Court will grant the Government's motion in part and deny it in part, and deny Mr. Wheeler's motion as moot.

  I. BACKGROUND

  John Fenton Wheeler is a retired journalist who had extensive experience reporting from Spanish-speaking countries. He is contemplating writing a book about his career. Declaration of Christine Kiefer, Sept. 12, 2002 ("1st Kiefer Decl."), Ex. A (Wheeler FOIA Request). Mr. Wheeler served as the correspondent in Cuba for the Associated Press ("AP") from February 13, 1967 until September 8, 1969. On that date, he was expelled by order of the Cuban government, and he and his wife were escorted aboard a Cuban plane to Mexico City. Humberto Carillo, press aide at the Mexican embassy in Havana, was also aboard the plane; Mr. Carillo had been formally accused by the Cuban government of being a spy for the United States Central Intelligence Agency ("CIA"). Mr. Wheeler was told that his expulsion was based upon his news stories concerning Mr. Carillo and on the Cuban government's accusation that he, too, was a CIA spy.

  Mr. Wheeler traveled from Mexico City to Houston, where he talked by telephone with the late Wes Gallagher, the AP's president and general manager. Mr. Gallagher advised that both the FBI and the CIA wanted to talk with Mr. Wheeler but Mr. Wheeler stated that he had no interest in talking with either agency.

  Thereafter, in February 1971, a Cuban defector, Francisco Antonio Teira Alfonso, testified to the U.S. Senate Judiciary Committee's Subcommittee on Internal Security that Castro had been very interested in proving that Mr. Wheeler had been a CIA agent or had been co-opted by the CIA. Mr. Alfonso had worked for the Cuban Directorate of State Security at the time and testified that he had been ordered by a superior to frame Mr. Wheeler.

  Mr. Wheeler submitted a FOIA/PA request to the FBI by letter dated June 18, 2001, seeking records concerning himself. Specifically, he requested that the FBI:
1. [S]earch the General Indices to [the] Central Records System for all main files and "see" references.
2. [S]earch the ELSUR indices and any appropriate indices maintained by any division, section or other component of the FBI.
3. [Search for] ticklers, numbered and lettered subfiles, 1A envelopes, enclosures behind files ("EBFs"), file covers, Bulky Exhibits ("Bulkies"), control files, "JUNE" records or files. Mr. Wheeler want[ed] all records produced with the administrative markings and all reports to include the administrative pages. He want[ed] all pages released regardless of the extent of excising, even if all that remains are the date, stationary [sic] headings or administrative markings.
4. [S]earch [the] subfiles on Cuba (from February 1967 to September 1969), Spain and Portugal (from November 1969 to September 1982), and Peru (from September 1982 to 1985).
5. Mr. Wheeler also [sought]: (a) the worksheets or other documents generated in processing which list or inventory the records; and (b) all searchslips [sic] or other records used in searching this request.
1st Kiefer Decl., Ex. A at 1-2. By letter dated September 29, 2001, the FBI informed Mr. Wheeler that his request had been received by FBI Headquarters ("FBIHQ") and, on May 7, 2002, it denied his request for a fee waiver. Id. at 2. Thereafter, on August 8, 2002, the FBI processed the documents identified below and released the non-exempt documents to Mr. Wheeler. Id.

  FBIHQ searched the indices of the FBI Central Records System ("CRS") for responsive records.*fn2 The FBI also searched its Electronic Surveillance Indices ("ELSUR"), through which the FBI maintains information on all subjects whose electronic and/or voice communications have been intercepted by the FBI since January 1, 1960.*fn3 As a result of the CRS search, three main files, 105-HQ-165399, 105-HQ-203884, and 105-HQ-241850, were located. Id. ¶ 5. The ELSUR indices were searched by use of Mr. Wheeler's full name, "John Fenton Wheeler," and by his date of birth, place of birth and social security number. No records were located as a result of the ELSUR search. Id.

  The FBI reviewed a total of 56 pages located as a result of the CRS search. Id. at ¶ 5 n. 3. Five of these were duplicates and 51 pages were processed. Id. Information was withheld in reliance on PA Exemption (j)(2) and FOIA Exemptions (b)(1), (b)(2), (b)(7)(C), and (b)(7)(D).*fn4 In addition, at the request of a First [non-FBI] Government Agency, the FBI also withheld, in full, classified information in certain documents, in reliance on FOIA Exemption (b)(1). Mr. Wheeler then requested a search for cross references in which thirteen (13) cross references appeared to be responsive to his request. Eleven of these cross references were reviewed and it was determined that they contained information concerning him. The FBI is withholding in full, on the basis of FOIA Exemption (b)(1), classified information in certain of these cross-references originating with or referring to other agencies at the requests of a First and a Second Government Agency, i.e., WHEELER pages 66, 76, 77; and WHEELER pages 52-53 respectively. Id. Of the two remaining cross references, one contains no identifying information (date of birth, social security number) to identify the document as relating to Mr. Wheeler and the second was destroyed in 1974. A total of twenty-three (23) pages of cross references were released to Mr. Wheeler.*fn5 The FBI relied on PA Exemption (j)(2) and FOIA Exemptions (b)(1), (b)(2), (b)(7)(C), and (b)(7)(D).

  Dissatisfied with this response, Mr. Wheeler filed suit on March 29, 2002.

  The FBI filed a public version of its motion for summary judgment on July 14, 2004. It has also filed an ex parte/in camera version of the brief, with accompanying materials to explain further the bases for withholding certain documents by the First and Second Government Agencies. Having reviewed these materials in detail, the Court will order that the claims against the FBI for records referred by the First and Second Government Agencies are now resolved, withholding the documents was appropriate under FOIA Exemption (b)(1), 5 U.S.C. § 552(b)(1), and those claims will be dismissed with prejudice. II. LEGAL STANDARDS

  A. Summary Judgment

  Summary judgment is the routine vehicle by which most FOIA actions are resolved where there are no material facts genuinely at issue. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). FOIA requires agencies of the federal government to release records to the public upon request, unless one of nine statutory exemptions applies. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). "Disclosure, not secrecy, is the dominant purpose of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976); DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001).

  "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 PA. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a (g)(3)(A). The agency bears the burden of sustaining its decision to claim an exemption from disclosure. Id.

  "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe `the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) (quoting Military Audit Project, 656 F.2d at 738). The court is to "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Military Audit Project, 656 F.2d at 738 (quoting S. REP. No. 93-1200, 93rd Cong. (2nd Sess. 1974), reprinted in 1974 U.S.C.C.A.N. 6290), and should remain "[m]indful that [it has] little expertise in either international diplomacy or counterintelligence operations, [and thus is] in no position to dismiss the [government's] facially reasonable concerns." Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).

  B. FOIA and PA Exemptions

  1. FOIA Exemption 1

  Classified information that has been properly designated as secret is exempt from disclosure under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). This exemption protects information that is "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . [is] in fact properly classified pursuant to such Executive order[.]" Id. Sections 1.5(c) and 1.5(d) of Executive Order ("E.O.") 12,958 authorize the classification of information that concerns intelligence activities, sources, methods, or foreign relations. See Exec. Order No. 12,958, 60 Fed. Reg 19, 825 (April 17, 1995). Pursuant to section 1.2(a)(4) of the E.O., information in these categories may be classified when the appropriate original classification authority determines that unauthorized disclosure reasonably could be expected to cause damage to national security in a manner that the ...


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