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
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.
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
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"
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
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
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
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 ...