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Fuller v. Central Intelligence Agency

February 28, 2007

GARY FULLER, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Gary Fuller sued defendant Central Intelligence Agency ("CIA") for information withheld in response to Fuller's request for documents under the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"). The CIA filed a motion for summary judgment, which Fuller opposes with respect to 31 specific documents only. An in camera review of ten of the 31 disputed documents revealed that the CIA's asserted exemptions were justified as to five of them, but that the other five documents reviewed contained withheld information that should have been disclosed. Accordingly, the CIA's motion for summary judgment will be granted in part and denied in part, and the CIA will be required to reconsider its claims of exempt information, submit a new index and declaration specific to the documents that remain in dispute, and submit those documents for in camera review.

BACKGROUND

Fuller, a professor of geography, was an independent contractor with the CIA for more than a decade in the 1980s and 1990s. In December 1998, after his contractual relationship with the CIA had ended, Fuller made a request for documents under the FOIA and the Privacy Act, codified at 5 U.S.C. §§ 552a et seq. ("PA"). He filed this suit to enforce his rights under the FOIA in February 2004.

The CIA located more than 800 responsive documents, of which 287 were released in full, 455 were released in part, 77 were denied in full, and three were referred to other agencies for a release determination and direct response to Fuller. (See Def.'s Mem. in Supp. of Def.'s Mot. for Summ. J. at 2.) The CIA claimed either FOIA or PA exemptions, or both, for all information not released, supplied Fuller with an index and declaration designed to demonstrate that the exemptions were justified as applied, and moved for summary judgment. Fuller opposed the CIA's motion with respect to 31 specific documents only, 28 of which were withheld in their entirety and 3 of which were partially released.*fn1

(Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 2 & n.2 ("Opp'n") ("All other challenges to any other records can be deemed waived.").) Because the CIA's statements on the record in this case left room to doubt that the CIA was justified in withholding all the information it withheld, the CIA was ordered to submit ten documents for an in camera review.*fn2

DISCUSSION

Summary judgment is appropriate only when the pleadings and record evidence demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 252 (1986). To obtain summary judgment in a FOIA case, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). Thus, if the agency locates records but withholds all or part pursuant to an exemption, it must assert one or more of the statutory exemptions codified at 5 U.S.C. § 552(b) as justification and, if challenged, must prove that the exemption is valid.

A challenge to an agency's FOIA exemption assertions requires a court to conduct a de novo review of the application of the exemptions. 5 U.S.C. § 552(a)(4)(B). In its discretion, a court "may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions." Id. In camera reviews are unnecessary when an agency affidavit or other showing is reasonably specific and demonstrates that the withheld information is exempt. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). An in camera review is appropriate when something leads the district court to believe "that in camera inspection is needed in order to make a responsible de novo determination on the claims of exemption." Id. This may be the case where the affidavit is "insufficiently detailed to permit meaningful review of exemption claims," Quiñon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996), where there is evidence of bad faith on the part of the agency, or where the judge wishes to resolve an uneasiness about the government's "inherent tendency to resist disclosure." Ray, 587 F.2d at 1195. An in camera inspection for "segregable non-exempt matter" is appropriate if the agency's justification "merely recit[es] statutory standards," or is either "conclusory," "vague" or "too sweeping." Weissman v. CIA, 565 F.2d 692, 698 (D.C. Cir. 1977) ; Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 261-62 (D.C. Cir. 1977); Quiñon, 86 F.3d at 1228.

I. FOIA EXEMPTIONS

Congress passed the FOIA in 1966 "to permit access by the citizenry to most forms of government records." Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). There can be no dispute that "[t]he mandate of the FOIA calls for broad disclosure of Government records. Congress recognized, however, that public disclosure is not always in the public interest and thus provided that agency records may be withheld from disclosure under any of the nine exemptions defined in 5 U.S.C. §552(b)." CIA v. Sims, 471 U.S. 159, 166-67 (1985). The nine statutory exemptions "were plainly intended to set up concrete, workable standards for determining whether particular material may be withheld." EPA v. Mink, 410 U.S. 73, 79 (1973). The documents submitted for in camera review in this case implicate only three of the nine FOIA exemptions.

The FOIA provides that information may be withheld if it is "specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]" 5 U.S.C. § 552(b)(3). The CIA used the (b)(3) exemption to withhold information which, if released, reasonably could be expected to lead to the unauthorized disclosure of intelligence sources and methods that the Director of the CIA was responsible for protecting under 50 U.S.C. § 403-3(c)(7) (2000) (the law in effect prior to enactment of the Intelligence Reform and Terrorism Prevention Act of 2004). (See Decl. of Terry N. Buroker at 4-5, Oct. 31, 2005 ("Buroker Decl.").) In addition, the CIA used the (b)(3) exemption to withhold information concerning the organization, ...


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