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Wheeler v. United States Dep't of Justice

November 21, 2006


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


After the Court granted summary judgment to the Department of Justice ("DOJ") on all but two issues in this FOIA/PA*fn1 case, the parties filed renewed cross motions for summary judgment on the remaining issues. Plaintiff John Fenton Wheeler argues that DOJ, through its constituent agency the Federal Bureau of Investigation, still fails to satisfy its obligations under FOIA. The Court disagrees and will grant summary judgment to DOJ.


This is the Court's third occasion to issue an opinion in this case. The Central Intelligence Agency and DOJ were both originally named defendants. The CIA filed a motion for summary judgment on October 16, 2002, which the Court granted on June 4, 2003. Wheeler v. CIA, No. 02-cv-0604 (RMC), Mem. Op. & Order (D.D.C. June 4, 2003) (Dkt. Nos. 41 and 42). Parallel allegations against the FBI were not fully briefed until June 5, 2005, and the Court granted partial summary judgment to DOJ on September 30, 2005. Wheeler v. Dep't of Justice, 02-cv-0604 (RMC) Mem. Op. (D.D.C. Sept. 30, 2005) (Dkt. # 83). The Court will only summarize the background to this litigation and presumes familiarity with its previous memorandum opinions.

John Fenton Wheeler is a retired journalist who had extensive experience reporting from countries where Spanish is the native language. He is contemplating writing a book about his career. On September 8, 1969, Mr. Wheeler was expelled from Cuba allegedly because of his stories for the Associated Press concerning a Mexican embassy worker who was accused by the Cuban government of being a spy for the United States. Mr. Wheeler later learned, through testimony from a Cuban defector before the U.S. Senate, that President Castro had been interested in learning whether Mr. Wheeler was a spy for the CIA or had been co-opted by the CIA.

Mr. Wheeler submitted a FOIA/PA request to the FBI on June 18, 2001 seeking records concerning himself. As pertinent to the instant motions for summary judgment, he sought records concerning himself maintained in the FBI "109 files on Cuba . . . Spain and Portugal . . . and Peru" for specified time periods. Mr. Wheeler also sought worksheets and search slips used in processing his request. 1st Kiefer Decl., Ex. A at 1-2. The FBI eventually provided Mr. Wheeler with some documents responsive to his request. Important to the instant motions, it informed him that its search located no 109 files or "search worksheets"; but it did locate six search slips, which were provided to Mr. Wheeler with some redactions.

Based on its position that it had complied with FOIA, DOJ moved for summary judgment. The Court granted DOJ's motion in part, but denied the motion without prejudice with respect to two issues: first, it was unclear from the record whether the FBI had searched the 109 files, as requested; and second, there was no response to Mr. Wheeler's assertion that the FBI did not release its "search worksheets," as requested. Both parties thereafter renewed their cross motions for summary judgment on those two issues, and Mr. Wheeler raised two additional issues - that one of the redactions to the search slips was not justified under FOIA Exemption 1, and that the Court should vacate that part of its September 30, 2005 Memorandum Opinion and Order which pertained to the adequacy of the FBI search and grant limited discovery on that issue. By minute order entered on August 25, 2006, the Court ordered DOJ to respond specifically to Mr. Wheeler's assertion that "worksheets" and "search slips" are different kinds of documents. That response having now been filed, the matter is again ripe for decision.



FOIA requires agencies of the federal government to release records to the public upon request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). "[D]isclosure, 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). Because this case arises under FOIA, the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. See Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). And because his request for information under FOIA was denied, at least in part, Mr. Wheeler has standing to sue. See Zivotofsky v. Sec'y of State, 444 F.3d 614, 617 (D.C. Cir. 2006) ("Anyone whose request for specific information [under FOIA] has been denied has standing to bring an action").

Classified information that has been properly designated as secret is exempt from disclosure under FOIA Exemption 1. See 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 E.O. 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 classification authority is able to identify and describe. The government may satisfy its burden of justifying non-disclosure through the submission of agency declarations of sufficient detail to describe the withheld material with reasonable specificity and the reasons for non-disclosure. U. S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 753 (1989).

B. Summary Judgment

Summary judgment is the routine method for resolving most FOIA actions when there are no material facts genuinely at issue. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313-14 (D.C. Cir. 1988); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The standard is well known: under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A "genuine issue" is one whose resolution could establish an element of a claim or defense and therefore affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. Thus, "[a] party opposing a motion for summary judgment must point to more than just 'a scintilla of evidence' supporting his position; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Anderson, 477 U.S. at 252). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.

"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. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a (g)(3)(A). It is the agency opposing disclosure of the information under FOIA that bears the burden of establishing that a claimed exemption applies. See, e.g., Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). "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 ...

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