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Porter v. Central Intelligence Agency

September 30, 2008

MARK S. PORTER, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Mark Porter brings this action against Defendant Central Intelligence Agency ("CIA") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended by the Freedom of Information Act of 1986 ("FIRA"), Pub.L. No. 99-570, § 1801-04, 100 Stat. 3207-48, 48-50.

The present matter is before the Court on Defendant's Motion to Dismiss and/or for Summary Judgment pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and/or 56(b) [Dkt. No. 3].

Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment [Dkt. No. 3] is granted.

I. BACKGROUND*fn1

Plaintiff filed two separate FOIA requests for the same information: the first request in 1997, and the second in 2006.

A. The 1997 FOIA Request

Plaintiff Mark Porter submitted a FOIA request to Defendant on July 9, 1997. He requested "all reports, results of investigation, surveillance data, internal memorandum or other documents concerning Mr. Mark S. Porter between the years 1986 and 1991 while Mr. Porter was employed by Bendix Field Engineering Corporation." Def.'s Mot. To Dismiss, Ex. 1 at ¶ 6("Koch Decl.").

In a letter dated October 16, 1997, Defendant notified Plaintiff that it had concluded that no documents were available for release to him under FOIA. Plaintiff appealed this decision to the Agency Release Panel on October 26, 1997. On April 1, 1998, Defendant sent a letter to Plaintiff, notifying him that his appeal had been reviewed and that the initial determination had been upheld. This letter stated that Plaintiff had the "right" to "seek judicial review of this determination in a United States district court."

Following that 1998 letter, Plaintiff took no action for more than seven years.*fn2 Finally, on November 7, 2005, his attorney wrote to "request information" regarding the original 1997 FOIA inquiry. On May 23, 2006, Defendant responded by sending Plaintiff a copy of the April 1998 letter that denied his appeal.

B. The 2006 FOIA Request and Appeal

Plaintiff's attorney responded in an August 21, 2006 letter in which he stated that he was appealing the April 1998 decision. He also claimed that Plaintiff could "re-file his FOIA request . . . and restart the process," which would "effectively resurrect[] a claim dismissed pursuant to the statute of limitations." The letter did not explicitly state that it was intended to initiate such a second FOIA request.

Despite this ambiguity, Defendant treated Plaintiff's attempted appeal as a new FOIA request, communicating this decision to Plaintiff in a letter dated September 7, 2006.*fn3 The letter outlined the subsequent steps Defendant would take, including a "search for CIA originated records existing through the date of this acceptance letter."

The letter also alerted Plaintiff to the possibility of "unavoidable processing delays" that made it "unlikely" that the agency would be able to respond within the statutorily-required twenty-day period. The letter informed Plaintiff that he was entitled to consider the delay a "denial" of his request, that he could appeal directly to the Agency Release Panel, and that in the absence of such an appeal Defendant would continue to process the request.

When Defendant received no response, it processed Plaintiff's request as an ordinary FOIA inquiry. Its search produced one document, which it released to Plaintiff with an accompanying letter on October 19, 2006. The letter informed Plaintiff of his "right to appeal" the determination to the Agency Release Panel, so long as he filed that appeal within forty-five days. Plaintiff never filed that appeal.

Plaintiff filed this action on January 18, 2007. He claims that he is entitled to the requested information under FOIA and that Defendant ...


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