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Schoenman v. Federal Bureau of Investigation

March 19, 2009

RALPH SCHOENMAN, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, Ralph Schoenman, a political activist and author, filed the above-captioned action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 ("Privacy Act" or "PA"), 5 U.S.C. § 552a, seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations, from a total of ten different named agencies and a number of unnamed agencies to which the named agencies might refer documents for a determination as to releasability (identified as "John Doe Agencies 1-10" in Plaintiff's Complaint). Plaintiff's Complaint named as Defendants: the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the Defense Intelligence Agency ("DIA"), the Department of the Air Force ("Air Force"), the Department of Justice ("DOJ"), the Department of the Army ("Army"), the Department of the Navy ("Navy"), the Department of State ("State Department"), the National Archives and Records Administration "NARA"), the National Security Agency ("NSA"), and John Doe Agencies 1-10. Compl. at 1 & ¶ 13.

In a Memorandum Opinion and Order dated March 31, 2006, the Court dismissed certain portions of Plaintiff's Complaint against Defendants CIA, NARA, NSA, Air Force, Army, and Navy because Plaintiff either could not show that the agencies had received his FOIA/PA requests or could not show that he had exhausted his administrative remedies as to the agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C. Mar. 31, 2006). By Memorandum Opinion and Order dated June 5, 2006, the Court dismissed without prejudice certain portions of Plaintiff's Complaint against the FBI and the State Department. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1582253 (D.D.C. Jun. 5, 2006) (CKK). The Defendants with remaining obligations to process documents in response to Plaintiff's request did so. Those Defendants, along with the agencies to whom they have referred documents for releasability determinations, have now begun moving for summary judgment, and Plaintiff has filed cross-motions for summary judgment.*fn1 This Memorandum Opinion addresses only the Motion for Summary Judgment filed by the CIA and the Cross-Motion for Partial Summary Judgment filed by Plaintiff.

The Court has conducted a searching review of the CIA's Motion for Summary Judgment, Plaintiff's Cross-Motion for Partial Summary Judgment/Opposition, the CIA's Opposition/Reply, Plaintiff's Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court shall GRANT-IN-PART the CIA's [64] Motion for Summary Judgment and shall DENY-IN-PART Plaintiff's [70] Cross-Motion for Partial Summary Judgment, finding in favor of Defendant CIA as to (1) the adequacy of the CIA's search, to the extent the CIA declined to task the Directorate of Intelligence and the independent entities that report to the Director of Central Intelligence to conduct a search in response to Plaintiff's FOIA/PA Request, (2) the CIA's withholding of information, and (3) the CIA's segregation of non-exempt information. The Court cannot, however, ultimately resolve the parties' cross-motions as to the adequacy of the CIA's search of the Directorate of Operations' and the Mission Support Offices' records because the CIA has not provided a reasonably detailed and nonconclusory description of its search of those records. In the absence of this information, the Court cannot determine whether the CIA's search of those records was adequate. As such, the Court shall HOLD IN ABEYANCE the parties' cross-motions for summary judgment with respect to the adequacy of the CIA's search as it concerns the Directorate of Operations and the Mission Support Offices.

I. BACKGROUND

As an initial matter, the Court notes that the facts included herein are taken primarily from the declarations of Ralph S. DiMiao,*fn2 submitted in support of the CIA's Motion for Summary Judgment. See Decl. of Ralph S. DiMaio, Information Review Officer for the National Clandestine Service of the CIA (hereinafter "DiMaio Decl."), submitted in support of the CIA's Motion for Summary Judgment; see also Third Decl. of Ralph S. DiMaio (hereinafter "Suppl. DiMaio Decl."), submitted in support of the CIA's Reply. The CIA has also provided, as required by Local Civil Rules 56.1 and 7(h), a Statement of Material Facts as to Which There is No Genuine Issue; however, because that Statement generally summarizes DiMaio's Declarations, the Court instead cites directly to DiMaio's Declarations. See generally CIA Stmt. Plaintiff has responded to the CIA's Statement with a responsive Statement as well as a Statement of Material Facts Not in Dispute. See Pl.'s Resp. Stmt. and Pl.'s Stmt. In his responsive Statement, however, Plaintiff either admits the CIA's assertions or asserts that he "is without information or knowledge sufficient to admit or deny and therefore denies," see e.g., Pl.'s Resp. Stmt. ¶¶ 2-4. As these bare assertions are not supported by facts contradicting DiMaio's declarations, the Court accepts DiMaio's sworn statements-which are supported by the record of correspondence between the CIA and Plaintiff-as uncontroverted and relies upon them herein.

As to Plaintiff's own Statement of Material Facts, the Statement is largely inadequate for three reasons. First, Plaintiff's Statement relies almost exclusively upon his own declarations, both of which were filed with Plaintiff's Cross-Motion/Opposition, as the sole support for many of the factual assertions in his Statement that concern the activities, actions, interests, and statements of third parties. See generally Pl.'s Stmt. Plaintiff's declarations, however, do not provide an indication as to how Plaintiff has personal knowledge of such facts. For example, Plaintiff asserts that, "[d]uring the 1960s, the CIA conducted many illegal operations against leftwing dissidents," citing only to his own declaration for support of this statement, id. ¶ 13, but his Declaration in turn does not indicate how he has personal knowledge of the CIA's operations during that time period, see generally Decl. of Ralph Schoenman (hereinafter "Schoenman Decl."), submitted in opposition to the CIA's Motion for Summary Judgment. Federal Rule of Civil Procedure 56(e)(1) requires that an affidavit "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." To the extent Plaintiff's Declarations fail to comply with Rule 56(e), the declarations do not provide appropriate support for Plaintiff's Statement, and the Court shall disregard any factual assertions made without adequate support for the purposes of the parties' cross-motions for summary judgment. Second, many of the "factual" assertions in Plaintiff's Statement are not facts at all, but rather legal arguments. See, e.g., Pl.'s Stmt. ¶ 18 ("There is no evidence that these vast disclosures [of CIA records] have damaged U.S. national security interests."). The Court cannot accept Plaintiff's legal arguments, dressed up as facts, as uncontroverted, and notes that Plaintiff's legal arguments do not create genuine issues of material fact. Third and finally, Plaintiff's Statement largely consists of immaterial statements that could not, even if true and adequately supported, create a material fact in dispute sufficient to defeat summary judgment. Consequently, the Court cites primarily to DiMaio's Declarations in recounting the factual background of this case.

A. Plaintiff's FOIA/PA Request to the CIA

By letter dated July 24, 2001, Plaintiff, through counsel, submitted a request to the CIA pursuant to the FOIA and the PA (hereinafter "FOIA/PA Request"). See DiMaio Decl. ¶ 9 & Ex. A. As is relevant here, Plaintiff's FOIA/PA Request sought access to records pertaining to himself, all "index references" and all previous FOIA requests pertaining to himself, as well as all records used by the CIA in its searches in response to the FOIA/PA Request.*fn3 Id. Along with the request, Plaintiff also submitted a Privacy Act Authorization permitting the CIA to release records about him to his counsel. Id., Ex. A at 4. The CIA acknowledged Plaintiff's FOIA/PA Request in a letter dated September 18, 2001, and advised Plaintiff that his request would be handled under both the FOIA and the PA. Id. ¶ 10 & Ex. B. In addition, the CIA advised Plaintiff that it would search "for documents in existence as of and through the date of this acceptance letter." See id., Ex. B.

1. The CIA's Records Systems

DiMaio explains in detail that all CIA records are maintained by one of four directorates or in the independent offices and entities that report to the Director of Central Intelligence ("DCI")*fn4: the Directorate of Operations ("DO"), the Directorate of Intelligence ("DI"), the Director of Science and Technology ("DS&T"), the Mission Support Offices ("MSO") and the DCI Area. Id. ¶ 22. The DO*fn5 is the CIA directorate that is responsible for the clandestine collection of foreign intelligence information. Id. ¶ 23. The DO's records system contains information on persons or entities that are of foreign intelligence or counterintelligence interest to the CIA and other United States Government agencies. Id. The DI is the CIA directorate that analyzes, interprets, and forecasts foreign-intelligence issues and world events of importance to the United States. Id. ¶ 24. It is responsible for the production of finished intelligence reports for dissemination to policymakers in the United States Government. Id. The DS&T is the CIA directorate that creates and applies technology to fulfill intelligence requirements. Id. ¶ 25. The DS&T also maintains records produced by the Foreign Broadcast Information Service ("FBIS"), the primary collector of foreign open source information*fn6 for the United States Intelligence Community. Id. The MSO*fn7 was the CIA's administrative and support arm and was comprised of five separate offices: Chief Information Officer, Chief Financial Officer, Global Support, Chief Human Resources Officer, and the Office of Security. Id. ¶ 26. The MSO was responsible for administrative matters and matters relating to personnel and security issues (including investigations of individuals having past, present, or potential relationships with CIA). Id. Finally, the DCI Area includes the independent offices that report directly to the DCI, and is distinct from the CIA's four main directorates (DO, DI, DS&T, and MSO). Id. ¶ 27. The DCI Area includes the Office of Inspector General, the Office of General Counsel, the Office of Congressional Affairs, the Office of Public Affairs, and other entities such as the Executive Secretariat. Id.

2. The CIA's General Procedures for Processing FOIA/PA Requests

In general, the CIA's Information and Privacy Coordinator, who also serves as Chief of the Public Information Programs Division within the office of Information Management Services ("IMS"), is responsible for managing the FOIA and PA programs at the CIA. Id. ¶ 28. IMS is the initial reception point in the CIA for all FOIA and PA requests. Id. Upon receipt of a FOIA or PA request, IMS personnel determine which directorates of the CIA*fn8 reasonably might be expected to possess records that may be responsive to the request and then forward copies of the requester's letter to those directorates with instructions to search for any responsive documents. Id. The tasked directorates then conduct searches among all directorate components, indices and databases that reasonably might be expected to have any information responsive to the request. Id. As DiMaio explains, records systems and indexing systems vary among the CIA components (within one of the directorates described above) because the record systems must reflect and respond to the established responsibilities and needs of those individual CIA components. Id. ¶ 21. For example, some CIA records systems are organized to facilitate the collection of intelligence, while others facilitate the analysis of intelligence information, depending on the missions of the particular CIA component. Id. Accordingly, the CIA's ability to retrieve data from a given records system depends upon the type of information stored in that system and the way the system is designed to retrieve that information. Id.

After a tasked component locates documents in response to the FOIA or PA request, officers must review those documents to determine whether they, in fact, respond to the request. Id. ¶ 29. DiMaio explains that, because of the nature of a particular records system, or the search tools, indices, or terms employed, a search may locate many documents that are not responsive to the request. Id. The officers therefore first identify and remove any non-responsive documents, before reviewing the remaining responsive documents to determine if any FOIA or PA exemptions apply, and whether they can reasonably segregate non-exempt information from exempt information. Id. ¶ 30. When all of the components complete their respective reviews, IMS personnel incorporate all of the recommendations regarding exemptions, segregation, and release, resolve conflicting recommendations, and ensure that the release or withholding determinations comply with the law and published CIA regulations. Id. ¶ 32. Under the direction and supervision of the CIA Information and Privacy Coordinator, a review is then conducted from a corporate perspective on behalf of the entire CIA, and additional exempt information that reflects overall CIA equities may be identified. Id. A final record copy of each document is then produced and a response is provided to the requester. Id.

3. Search for Responsive Records Specific to Plaintiff's FOIA/PA Request

DiMaio explains that the CIA processed Plaintiff's FOIA/PA Request following the procedures set forth above. Id. ¶ 34. That is, the request was received by IMS, reviewed by IMS personnel, and then tasked to those CIA directorates which IMS had determined were reasonably likely to have responsive records. Id. In this case, IMS tasked the DO and MSO with processing Plaintiff's FOIA/PA Request, based upon its determination that these were the two components most likely to possess responsive records, if any existed. Id. IMS did not task the DI, DS&T, or the DCI Area to conduct searches in response to the request. Id. ¶ 37. DiMaio explains that, given the analysis-based mission of the DI, IMS officers determined that the DI was not likely to have any records responsive to Plaintiff's FOIA/PA Request. Id. Similarly, DiMaio explains that, given the technology-based mission of the DS&T, IMS also determined that the DS&T was not likely to have any records responsive to Plaintiff's FOIA/PA Request. Id. Finally, given the function of the DCI Area and the offices encompassed therein, IMS decided that the DCI Area was not likely to have any responsive records either. Id. Accordingly, IMS tasked only the DO and the MSO to search for records responsive to Plaintiff's FOIA/PA Request, instructing those components to search for responsive records through the date of the September 18, 2001 acceptance letter. Id.

As to the DO, DiMaio avers that "[t]he DO made all reasonable efforts to identify and retrieve any records responsive to plaintiff's PA request." Id. ¶ 35. More specifically, he states that the DO searched using Plaintiff's first and last name, explaining that the DO records system automatically accounts for variations in spelling. Id. DiMaio further states that "[f]ive responsive documents were located" as a result of DO's search. Id.

As to the MSO, DiMaio avers that "[t]he MSO also made all reasonable efforts to identify and retrieve any records responsive to plaintiff's PA request." Id. ¶ 36. The MSO searched using Plaintiff's name and variants thereof (for example, searching for "Ralph Benedek Schoenman,""Ralph B. Schoenman," "R Schoenman," "Schoenman," "Schonman," and "Schoeman"). Id. DiMaio further states that no responsive records were located as a result of the MSO's search. Id.

Thereafter, in a letter to Plaintiff's counsel dated November 12, 2002, the CIA informed Plaintiff that his FOIA/PA Request had been processed and that the CIA had located responsive material, but that it had determined the material must be denied in its entirety on the basis of FOIA Exemptions 1 and 3 and PA Exemptions (j)(1) and (k)(1). Id. ¶ 11 & Ex. C. The CIA also informed Plaintiff that he could appeal the CIA's determination within 45 days of the date of its letter. Id. The responsive material located by the CIA but withheld in its entirety consists of five documents, which are Documents 1-5 as described in the CIA's Vaughn index.*fn9 See id. at 51-53.

Plaintiff replied by letter dated November 25, 2002, indicating that he was appealing the CIA's determination. Id. ¶ 12 & Ex. D. The CIA acknowledged Plaintiff's appeal in a letter dated March 31, 2002 and advised Plaintiff that it had determined that the material located in response to Plaintiff's request must continue to be denied in its entirety on the basis of FOIA exemptions (b)(1) and (b)(3) and PA exemptions (j)(1) and (k)(1). Id. ¶ 13 & Ex. E.

B. Plaintiff's FOIA/PA Requests to Other Agencies that were Referred to, or Coordinated with, the CIA

As DiMaio explains, an agency may, in processing a FOIA or PA request, find responsive material that actually originates from another agency or that contains information that another agency may have equity in. See id. ¶¶ 14, 31. In that situation, the agency receiving the FOIA or PA request may "refer" the material to the other agency or may "coordinate" with the other agency in processing the request. See id. More specifically, a "referral" occurs when, in the course of reviewing documents responsive to a FOIA or PA request, an agency finds a document that was originated by a second agency. See id. ¶ 14, n. 5 When that occurs, the agency receiving the FOIA or PA request forwards, or "refers," the document(s) at issue to the second agency, which then becomes responsible for directly responding to the requester as to those documents. Id. "Coordination" occurs when an agency reviewing documents responsive to a FOIA or PA request finds a document that, although it originates from that agency, contains information that another agency is believed to have equity in. See id. ¶ 15, n. 9. In that situation, the agency receiving the request consults, or "coordinates," with the second agency to ensure that the second agency's equities are properly protected. Id. The agency receiving the request, however, remains responsible for directly responding to the requester after coordinating with the second agency. Id. As concerns Plaintiff, the CIA received referrals from both the State Department and the DIA and also received a request for coordination from the Department of State, as explained in detail below.

1. Department of State Referrals

By letter dated April 26, 2005, the Department of State referred five documents to the CIA, including three Foreign Broadcast Information Service ("FBIS") transcripts,*fn10 for review and direct response to Plaintiff. Id. ¶ 14 & n. 7. By letter dated June 30, 2005, the CIA informed Plaintiff of the Department of State referrals and advised Plaintiff that the CIA had determined that: (1) the three FBIS transcripts could be released in full; (2) one additional document could be released in part, withholding information under FOIA Exemption 3 and PA Exemption (j)(1); and that (3) another document was withheld in its entirety pursuant to FOIA Exemptions 1 and 3, as well as PA Exemptions (j)(1) and (k)(1). Id. ¶ 14 & Ex. F. The two responsive documents referred to the CIA by the Department of State and which were withheld in part or in whole are described as Documents 6 and 7 in the CIA's Vaughn index respectively. See id. at 53-54.

Thereafter, by letter dated May 28, 2008, the CIA advised Plaintiff that, during the course of the instant litigation, it had re-reviewed all of the documents that had been withheld either in their entirety or in part and had determined that the latter document (Document 7) referenced directly above, which had previously been withheld in full, could now be released in part to Plaintiff. Id. ¶¶ 14, n. 8, 18, & Ex. J.

2. Defense Intelligence Agency Referrals

By letter dated June 30, 2005, the DIA referred one CIA document and 105 FBIS transcripts to the CIA for its review and direct response. Id. ¶ 16. On June 19, 2006, the CIA informed Plaintiff that it was withholding in its entirety the CIA document referred by the DIA, based upon FOIA Exemptions 1 and 3. Id. This document is described as Document 11 in the CIA's Vaughn index. See id. at 56. In addition, the CIA also released to Plaintiff two of the FBIS transcripts in their entirety, but released the remaining 102 FBIS transcripts*fn11 in part, withholding certain under FOIA Exemption 3. Id. The 102 FBIS transcripts that were referred by the DIA and that were withheld in part are described as Documents 12-114 in the CIA's Vaughn index respectively. See id. at 56-57.

Thereafter, the DIA referred one additional FBIS transcript to the CIA for review and direct response to Plaintiff. See id. ¶ 17. By letter dated January 31, 2007, the CIA released this FBIS transcript in part, withholding information under FOIA Exemption 3. See id. ¶ 17 & Ex. I. This FBIS transcript is described as Document 115 in the CIA's Vaughn index. See id. at 57.

3. Department of State Coordination

By letter dated April 26, 2005, the Department of State also requested CIA coordination for four additional documents. Id. ¶ 15. As explained to Plaintiff in a letter dated June 30, 2005, the CIA determined that certain information needed to be redacted from these documents pursuant to FOIA Exemptions 1 and 3, and PA Exemptions (k)(1) and (j)(1). Id. ¶ 15 & Ex. G. Accordingly, Department of State released these four documents in part,withholding certain information on behalf of the CIA. See id.

Three of these Department of State documents were selected by Plaintiff to be included in the Department of State's Vaughn index provided as part of the Department of State's motion for summary judgment in this case. See Schoenman v. FBI, 573 F. Supp. 2d 119, 141 (D.D.C. 2008). As the Court explained in its decision granting in part Defendant Department of State's motion for summary judgment, to the extent information was withheld from these three documents (Documents P107, P244, and P334) on behalf of the CIA, the parties agreed that the CIA (rather than the Department of State) would address that material in its motion for summary judgment. Id. Accordingly, the CIA has, as agreed, included these three documents in its current motion, and such documents are described as Documents 8, 9, and 10 respectively in the CIA's Vaughn index. See DiMaio Decl. at 55-56. The Court notes that these documents are included in the instant cross-motions only to the extent the Department of State withheld information on behalf of the CIA. To the extent the Department of State may have otherwise withheld from Plaintiff, such information was addressed by the Department of State in its motion.

C. Procedural History

On December 20, 2004, Plaintiff filed his complaint in the instant case, and the present litigation ensued. As is relevant to the instant cross-motions, the Court, as discussed above, granted the CIA's motion to dismiss Plaintiff's claim against the CIA as it related to his third-party FOIA request, holding that Plaintiff had failed to exhaust his administrative remedies with respect to his request for records pertaining to Lord Russell and the six named organizations. See Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813, * 19-20 (D.D.C. Mar. 31, 2006) (CKK). Accordingly, only the portion of Plaintiff's FOIA/PA Request that sought records pertaining to Plaintiff himself is at issue in the instant Memorandum Opinion.

The CIA subsequently filed its Motion for Summary Judgment, see Docket Nos. [64] & [65], and Plaintiff thereafter filed his Cross-Motion/Opposition, see Docket Nos. [70] & [72]. The CIA filed its Opposition/Reply, see Docket Nos. [75] & [76], and Plaintiff filed his Reply, see Docket Nos. [82] & [83]. Accordingly, the parties' cross-motions for summary judgment are now ripe for review.

II. LEGAL STANDARDS

A. FOIA

In reviewing a motion for summary judgment under FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the Court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested... are exempt from disclosure under [] FOIA.'" Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. DOJ, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue ...


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