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Hall v. Central Intelligence Agency

November 12, 2009

ROGER HALL, ET AL., PLAINTIFFS,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Roger Hall, Studies Solutions Results, Inc., and Accuracy in Media ("AIM") filed this action against defendant Central Intelligence Agency ("CIA" or "Agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking records related to prisoners of war or soldiers missing in action from the Vietnam War era. Before the Court are the Agency's "Renewed Motion to Dismiss and for Partial Summary Judgment" [#109], Hall's*fn1 renewed "Cross-Motion for Partial Summary Judgment, an Order Authorizing Plaintiffs to Take Discovery, an Order Instructing Defendant to Conduct Additional Searches, and Orders for Certain Other Relief" [#117], and AIM's "Cross-Motion for Summary Judgment and for Other Relief" [#114]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that the CIA has properly declined to respond to some of plaintiffs' requests but must respond to others, the CIA has demonstrated the adequacy of some searches for records but not others, and the CIA has properly invoked some statutory exemptions to its disclosure obligations but has not provided sufficient information to support reliance on others. Accordingly, each motion shall be granted in part and denied in part, and the CIA shall be required to submit additional information to the Court.

I. BACKGROUND

A. The Freedom of Information Act

FOIA generally allows any person to obtain access to federal agency records, subject to certain specified exceptions. 5 U.S.C. § 552(a), (b). Congress enacted FOIA to "set[] forth a policy of broad disclosure of Government documents in order to ensure 'an informed citizenry, vital to the functioning of a democratic society.'" Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)) (alteration in original). Although Congress acknowledged that information requests may impose burdens upon government agencies, it decided that the "ultimate policy of open government should take precedence." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted).

In response to a FOIA request, an agency must "conduct[] a search reasonably calculated to uncover all relevant documents." Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1985) (internal quotation marks omitted). If a requester's suit challenges an agency's invocation of exemptions to its disclosure obligation, the agency must justify its reliance on those exemptions through the submission to the court of a so-called "Vaughn index," affidavits or declarations, or both, containing a detailed description of the information withheld. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009); see also Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir 1973).*fn2

B. Factual Background

Hall researches the status of Prisoners of War and Missing in Action ("POW/MIAs") from the Vietnam War era, on his own and on behalf of families of those veterans, and shares information he collects via email newsletters. AIM is a non-profit corporation that "disseminates analysis of news media reporting." Am. Compl. ¶ 3. Hall has submitted several FOIA requests to the CIA; requests he made in 1994 and 1998 were the subject of previous litigation before United States District Judge Paul L. Friedman, see Hall v. CIA, Civil Action No. 98-1319, slip op. at 1-4 (D.D.C. Aug. 10, 2000) ("Hall I"), the outcome of which has some bearing on this action, as explained below.

By letter dated February 7, 2003, Hall made a FOIA request of the CIA on behalf of himself and AIM. The request sought: (1) records pertaining to Southeast Asia POW/MIAs who have not returned to the United States; (2) records pertaining to POW/MIAs sent out of Southeast Asia; (3) documents prepared and/or assembled by the Agency between January 1, 1960 and December 31, 2002 regarding any POW/MIAs in Laos; (4) records of the Senate Select Committee on POW/MIA Affairs that were withdrawn from the National Archives; (5) records relating to forty-four particular POW/MIAs from whose next-of-kin Hall had received privacy waivers as well as approximately 1,700 POW/MIAs whose next-of-kin have made a general authorization for the release of those individuals' information; (6) all records pertaining to searches conducted for three previous FOIA requests Hall submitted in 1994 and 1998; and (7) all records related to "any search conducted regarding any other requests for records pertaining to Vietnam War POW/MIAs." Koch Decl. Ex. 1 at 2-3 ("February 2003 Letter" or "2003 request"). Hall and AIM asserted in their request letter that they were entitled to a waiver of their search fees because they are representatives of the news media and that they should receive a public interest waiver of their copying fees. Id. at 3.

On May 19, 2004, having received no substantive response to their request, Hall and AIM filed this action. On June 15, 2004, the CIA responded to the February 2003 letter, indicating that it could not accept items 1, 2, and 3 "as part of this new request" because Hall had asked for the same documents in the 1998 FOIA request at issue in Hall I. Koch Decl. Ex. 2 at 2. The CIA also indicated that it could not accept item 4 because the documents sought therein "are not 'agency records' subject to FOIA." Id. Regarding item 5, the Agency wrote that it could not accept the request unless plaintiffs provided "the date and place of birth and the full name of all individuals listed." Id. at 3. The CIA indicated that the item 7 request imposed "such overly burdensome search requirements as to not require a search." Id. The Agency stated that Hall had "failed to demonstrate that he meets the criteria for the 'representative of the news media' fee category" and estimated that the search fees for items 5, 6, and 7 would be $606,950. Id. It demanded a $50,000 deposit before it would process Hall's request. Id.*fn3

On April 13, 2005, this Court addressed several motions then pending in this case. Relevant here are the rulings in that opinion that "plaintiffs may not challenge" either "the CIA's withholding of certain records Hall sought in his May 28, 1998, FOIA request" or the conclusion "that particular records are exempt from the definition of 'agency records' under FOIA." Hall v. CIA, 2005 WL 850379, at *3 (D.D.C. Apr. 13, 2005) ("Hall II"). The Court also concluded that, based on the evidence before it, neither Hall nor AIM qualified as a representative of the news media for purposes of a fee limitation and plaintiffs were not entitled to a public interest fee waiver. Id. at *6-7.

On April 26, 2005, AIM sent a letter to the CIA duplicating the seven February 2003 requests and adding an eighth category, records "pertaining to the estimates of fees made in response" to the February 2003 letter. Koch Decl. Ex. 9 at 2 ("April 2005 Letter"). AIM again requested a waiver of search fees as a representative of the news media as well as a public interest waiver of copying fees. The CIA responded by letter, stating that all eight items were the subject of this pending case and therefore the CIA would not accept the request. Koch Decl. Ex. 10 at 2.

In May 2005, Hall sent two letters to the CIA: one included information "to supplement the application" for a fee limitation as a representative of the news media and for a public interest fee waiver, Koch Decl. Ex. 11, and the second made the same eight-part FOIA request as was included in AIM's April 2005 letter, id. ("May 2005 Letter"). The CIA responded to Hall's requests regarding fees, referring to the Court's April 2005 determination of these issues and writing that it had "considered the information" in Hall's letter before concluding that he had "not met the standard for a public interest fee waiver," nor did he "meet the definition of a representative of the news media." Koch Decl. Ex. 12 at 1.

In November 2005, the CIA released 122 documents, twenty in full and 102 in part, to Hall in response to the 1994 and 1998 requests that were the subject of Hall I. Koch Decl. Ex. 3 at 2. The Agency withheld twenty-six responsive documents "in their entirety" on the basis of certain FOIA exemptions. Id. The CIA asserts that this disclosure-which it notes was voluntary, because Hall I had been dismissed by the time it was made-responded to items 1 and 2 as well as, for the years 1971 to 1975, item 3 of Hall and AIM's current requests. Def.'s Renewed Mot. to Dismiss at 7. In September 2007, the CIA sent a letter to Hall and AIM stating that it had performed a search for item 3 documents from 1960 to 1971 and 1976 to 2002, the years included in the February 2003 request but not the 1994 and 1998 requests, and the Agency disclosed responsive, non-exempt documents. DiMaio Decl. Ex. 1 at 1. The letter also indicated that the CIA had located other responsive materials that originated outside the CIA and had referred those records to the relevant, unnamed agencies "for review and direct response to you." Id. at 2.

As to item 6, the CIA sent letters to Hall and AIM in August and October 2006 indicating it was providing responsive, non-exempt documents described in that portion of their request. Koch Decl. Exs. 6, 7.

Regarding item 8, the category added to the initial request, the CIA responded in July 2007 by providing one document in full and three in part. DiMaio Decl. Ex. A.

Meanwhile, in September 2005, Hall and AIM filed an amended complaint in this action asserting five claims. The plaintiffs allege that they have a right under FOIA to the records sought in their February 2003 letter (Count I); they have a right to the records sought in AIM's April 2005 letter and Hall's May 2005 letter, respectively (Counts II and III); they are entitled to a fee waiver as representatives of the news media (Count IV); and they are entitled to a public interest fee waiver (Count V).

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate if "the pleadings, the discovery 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). In a FOIA action, the 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), cert. denied, 445 U.S. 927 (1980). The agency is entitled to summary judgment in an action challenging the adequacy of its search only if it demonstrates that it has "conducted a search reasonably calculated to uncover all relevant documents." Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1985) (internal quotation marks omitted). Regarding withholdings pursuant to statutory exemptions, the Court may award summary judgment solely on the information provided in affidavits or declarations that describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Agency decisions to withhold or disclose information under FOIA are reviewed de novo. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). A reviewing court "has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B).

B. Dismissal for Failure to State a Claim

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint, or any portion of it, for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court considering such a motion to dismiss must assume that all factual allegations are true, even if they are doubtful. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of [her] 'entitle[ment] to relief,'" however, "requires more than labels and conclusions.... Factual allegations must be enough to raise a right of relief above the speculative level." Id. (internal citations omitted).

III. ANALYSIS

The parties' motions each make a number of arguments, many of which overlap or interrelate. Therefore, rather than addressing each motion in turn, the Court will consider first the CIA's refusal to respond to certain portions of Hall and AIM's requests, next the adequacy of the CIA's search for records pursuant to requests to which it has responded, third the propriety of the Agency's invocation of certain exemptions from FOIA's disclosure requirements, and finally the remaining issues of discovery, in camera inspection of documents, and fee waivers.

A. The CIA's Failure to Disclose Certain Categories of Documents

1. Item 4

The CIA requests dismissal under Rule 12(b)(6) as to item 4, which seeks records of the Senate Select Committee on POW/MIA Affairs that were withdrawn from the National Archives. The CIA argues that Hall and AIM are collaterally estopped from asserting any claim regarding item 4 because Judge Friedman ruled in Hall I that these records, as Senate documents, are not "agency records" subject to FOIA. Hall and AIM respond that Hall I required the CIA to confirm that no responsive documents are of its own creation and thus within the Agency's, rather than the Senate's, control.

As explained in this Court's earlier ruling, the principle of collateral estoppel*fn4 applies here to prevent Hall and AIM from arguing that the Senate Committee's records are "agency records." See Hall II, 2005 WL 850379, at *3 (D.D.C. Apr. 13, 2005). Consequently, insofar as plaintiffs' complaint requests the records of the Senate Committee, it must be dismissed. But collateral estoppel also applies against the CIA. Judge Friedman noted that although the Agency need not search or disclose any documents in the Senate Select Committee files, any "identical copies of... documents of its own creation" contained in CIA files would be subject to FOIA. Hall I, Civil Action No. 98-1319, slip op. at 14 n.4 (D.D.C. Aug. 10, 2000). Judge Friedman therefore ruled that "[i]n preparing its supplemental declarations in this matter, the CIA should confirm that it has independently reviewed all documents of its own creation that were included with the Senate Select Committee documents." Id. The CIA ultimately did not provide this confirmation,*fn5 so dismissal as to this specific category of documents is denied. The Agency must provide the confirmation Judge Friedman required or turn over any non-exempt records to Hall and AIM.

2. Item 5

The CIA asks this Court to rule that plaintiffs' item 5 request, which seeks "[r]ecords relating to [forty-four] individuals who allegedly are Vietnam era POW/MIAs, and whose nextof-kin have provided privacy waivers to Roger Hall... and those persons who are on the Prisoner of War/Missing Personnel Office's list of persons whose primary next-of-kin (PNOK) have authorized the release of information concerning them," February 2003 Letter at 2, is improper. The Agency argues that the request, which pertains to approximately 1,700 individuals,*fn6 was too vague to process and that Hall and AIM did not provide the additional information-the date of birth, place of birth, and full name of each person-the CIA notified them it required to conduct a proper search. The Agency refers to the contention in the Koch Declaration that searching without this additional information might turn up records pertaining to individuals with names similar to those on the list but whose private information plaintiffs are not authorized to see. See Koch Decl. ¶¶ 25-26.

Hall responds that the item 5 request is not vague. He argues that the CIA should search for, and provide records that contain, information sufficient to identify the person to whom it relates as one on Hall's lists. AIM contends that the Agency is able to perform searches for the forty-four individuals whose next-of-kin provided authorizations directly to Hall, noting that plaintiffs have provided specific information-such as social security numbers, service numbers, and other data-for many of those POW/MIAs. AIM further asserts that the information accompanying the longer list of POW/MIAs whose families have made records accessible-including branch of service, a seven-digit reference number, and other data regarding capture-makes a search of those names possible as well.

The CIA does not identify the legal authority on which its argument is based, but it seems to contend that item 5 does not fulfill the requirement that a FOIA request "reasonably describe[]" the records sought. 5 U.S.C. § 552(a)(3)(A). "A request reasonably describes records," however, "if 'the agency is able to determine precisely what records are being requested.'" Kowalczyk v. U.S. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982)). The Agency has not alleged that it cannot discern what records Hall and AIM seek. Instead, it has asserted that were it to search for the names, the search would turn up some records that are not responsive to Hall and AIM's request. So the Agency has conceded that a search is possible. And it has not explained why it could verify the identity of individuals whose names appear in its records by date and place of birth but not by, for example, social security number. If such an explanation exists, the CIA must provide it in a supplemental declaration. Otherwise, it must search for and disclose any non-exempt records which, based on the information Hall and AIM have provided and the details contained in the records themselves, it can verify pertain to an individual on plaintiffs' lists. Pending compliance with these instructions, the Agency is not entitled to summary judgment that it has complied with FOIA as to item 5.

3. Item 7

The CIA has not provided any records in response to item 7 of Hall and AIM's request, which asks for "all records pertaining to any search ever conducted by the Agency, at any time and for any reason, for records concerning Vietnam War POW/MIAs." February 2003 Letter at 3. The Agency argues that the request is "unreasonably burdensome" based on assertions in the Koch Declaration that "the Agency's record systems are not configured in a way that enables us to search for records of searches in [non-FOIA] contexts" and a search for FOIA searches "timed out" after producing over 3,500 potentially responsive results. Def.'s Renewed Mot. to Dismiss at 20-21; Koch Decl. ¶¶ 37-38. Hall responds that it would not "require a gargantuan effort to locate some responsive records" to this request "through reasonable searches." Pl. Hall's Cross-Mot. for Summ. J. at 45. AIM argues that "[t]here is no exemption for a search being unduly burdensome" and notes that it has, as the Agency requested, narrowed its item 7 request: it is no longer seeking records of previous FOIA requests pertaining to POW/MIAs but instead is requesting only records of previous searches that resulted from other types of requests. Pl. AIM's Cross-Mot. for Summ. J. at 18-19. In reply, the CIA maintains that the more limited request is not sufficiently narrowed to alleviate the burden a search would impose.

First, based on the parties' representations,*fn7 the Court will treat item 7 as excluding records of searches performed in response to previous FOIA requests. Thus the question of whether it is unreasonably burdensome for the CIA to sort through and ...


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