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Oglesby v. United States Dep't of Justice

February 27, 2007

CARL OGLESBY, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Carl Oglesby sued under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records maintained by the Federal Bureau of Investigation ("FBI") and the Central Intelligence Agency ("CIA"). Defendants have moved for summary judgment. Oglesby has filed his own cross-motion for summary judgment, and opposes defendants' motion. Because Oglesby raises issues only with respect to the FBI's disclosures, the defendants' motion as to the CIA will be granted as conceded. Because Oglesby has identified numerous genuine issues of material fact regarding whether the FBI has withheld only information properly exempted from disclosure under the FOIA, the defendants' motion will be denied as to the FBI, and the FBI will be required to file disclosures that fairly meet the requirements imposed by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); 523 F.2d 1136 (D.C. Cir. 1975); Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977); and King v. Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987). Because the FBI's disclosures are not sufficient to permit proper adversary testing of the issues in this case, it is not possible to conclude that there are no genuine issues of material fact, and therefore Oglesby's cross-motion for summary judgment will also be denied.

BACKGROUND

Oglesby is an author, lecturer and political journalist. During the 1960s, he participated in activities protesting the United States' involvement in Vietnam, and served as the President of Students for a Democratic Society ("SDS"). Because of his activities and associations, he has been the subject of governmental interest and surveillance. Oglesby believes that some of his activities were documented in an FBI program known as COINTELPRO. In later years, Oglesby voluntarily served as a human intelligence source for the FBI as well, a fact that he expected to be reflected in agency records.

Oglesby made FOIA requests to both the FBI and the CIA for records pertaining to himself. Three years later he filed this civil action to enforce his requests. In response to Oglesby's FOIA request, the CIA reviewed 273 responsive records and released all or part of 22 of these records to Oglesby. Oglesby does not challenge the CIA's response to his FOIA request.

The FBI reviewed 4510 responsive records and released all or part of 3770 of them to him. Oglesby and the FBI agreed that because of the large number of responsive records involved, Oglesby would select a small sample of documents for which the FBI would provide disclosures and an explanation of withheld information in accord with Vaughn's requirements. For the sample, Oglesby selected 90 documents comprised of some 234 pages. The FBI released the records to Oglesby, with annotations indicating statutory exemptions on pages where information had been redacted. The annotated pages were accompanied by an explanatory declaration. The FBI then filed a motion for summary judgment. Oglesby filed an opposition and cross-motion for summary judgment, arguing both that the FBI's declaration and annotated redacted pages fall short of the requirements imposed on agencies in FOIA cases and that the FBI's search for records is demonstrably deficient. Oglesby seeks to take discovery concerning the FBI's record search.

Because the factual and legal basis for many of the FBI's claimed exemptions was not clear from the annotated pages and accompanying declarations, the FBI was ordered to submit for in camera review approximately half of the pages in the sample given to Oglesby. The in camera review has been completed.

DISCUSSION

The FOIA was intended "to permit access by the citizenry to most forms of government records." Vaughn, 484 F.2d at 823. To protect competing privacy interests for both agencies and individuals, Congress balanced the right to information with nine statutory exemptions that were "plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed." EPA v. Mink, 410 U.S. 73, 79 (1973). Information that is not exempt must be disclosed. Mead Data, 566 F.2d at 260.

Summary judgment is permitted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In a FOIA suit an agency is entitled to summary judgment only after demonstrating that no material facts are in dispute and that all information falling within the class requested either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). In other words, here, the FBI must show through uncontroverted sworn statements (i) that it has "made a good faith effort to conduct a search . . . using methods which can reasonably be expected to produce the information requested," Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990), (ii) that there is no genuine issue that it properly invoked statutory exemptions to withhold any information, King, 830 F.2d at 217, and (iii) that all non-exempt information that is reasonably segregable has been segregated and disclosed. Mead Data, 566 F.2d at 260-62.

Compliance with the FOIA is tested in the adversary system upon a challenge by the party denied access to the records it seeks. In order for a FOIA challenge to be meaningful, the agency resisting disclosure of the records must disclose sufficient information about the records to permit a FOIA plaintiff to make an informed opinion about whether the agency has complied with the law and to "present its case effectively" to the court. Mead Data, 566 F.2d at 251; see also Vaughn, 484 F.2d at 823-24, 828 (noting that disclosing sufficient information will permit a more adequate adversary testing of the issues).

Where, as here, a FOIA plaintiff challenges an agency's assertion of FOIA exemptions, a court is required to conduct a de novo review of the application of the exemptions. 5 U.S.C. § 552(a)(4)(B). While an in camera inspection of the documents containing the information at issue may be undertaken at the court's discretion, in camera inspections are not advisable in light of the judicial resources such a task requires. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Rather, a court should be able to conduct its de novo review solely on the basis of the agency's disclosures and affidavits. The agency's submissions should "provide a reviewing court with sufficient information to determine, without the disclosure of actual documents, whether information withheld by an agency falls within the claimed FOIA exemption." Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006). An agency's FOIA response must be sufficiently precise and explanatory that a court can "effectively and efficiently . . . evaluate the factual nature of disputed information." Vaughn, 484 F.2d at 826. Without sufficiently specific and detailed information, neither a reviewing court nor an individual seeking agency records can meaningfully evaluate an agency's response to a request for government records. Founding Church of Scientology v. Bell, 603 F.2d 945, 947 (D.C. Cir. 1979).

I. ADEQUACY OF THE FBI'S SEARCH

Summary judgment may not be granted in the absence of an adequate search for responsive records. In the face of a challenge to the adequacy of an agency's search, the agency may meet its burden by providing a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials were searched. . . . The plaintiff may then provide countervailing evidence as to the adequacy of the agency's search. . . . If a review of the record raises substantial ...


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