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Valfells v. Central Intelligence Agency

June 17, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In this case brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the issue has been narrowed to a single question: has the Central Intelligence Agency officially acknowledged that it maintains any record on Sveinn B. Valfells, an Icelandic citizen who spent a considerable amount of time in the United States in the 1940s and 1950s and who died in 1981. If so, the CIA's Glomar*fn1 response - refusing to indicate whether or not it has such records - was inadequate. The Court finds that the disclosure here, contained in an FBI document, cannot be said to be an "official acknowledgment" by the CIA of the existence or nonexistence of the requested records. Therefore, the CIA's response to the Plaintiffs' FOIA request was appropriate. Even if it were not, however, the Plaintiffs have already received the limited information to which they are entitled and the case is moot. Summary judgment will be entered for the CIA.


The facts in this matter are not in dispute. By letter to the CIA dated November 19, 2007, Thomas E. Moore III, as counsel for Sveinn Valfells,*fn2 submitted a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request for agency records concerning Mr. Valfells's deceased grandfather. Specifically, Mr. Moore requested:

[A]ll information or records relevant to a citizen of Iceland, Sveinn B. Valfells, for the period 1941 to 1975, including but not limited to any records relating to a visa application for entry into the U.S. in the late 1950s. The type of record would also include any papers [sic] records or information kept by Lorrimer Moe (US Cultural Attache in Iceland in 1953) or other members of the US diplomatic corps in Iceland which relate to Sveinn B. Valfells.

Defs.' Mem. Supp. Summ. J. ("CIA Mem.") [Dkt. ## 6, 8], CIA Ex. A.*fn3 By letter dated December 17, 2007, the CIA acknowledged receipt of the FOIA request and provided a Glomar response: "in accordance with section 3.6(a) of Executive Order 12958, as amended, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to this part of your request." CIA Mem., CIA Ex. B. The CIA relied on FOIA Exemptions (b)(1) and (b)(3) to support its denial. Id.

Mr. Moore appealed the denial by letter dated January 29, 2008. Id., CIA Ex. C. By letter dated March 21, 2008, the CIA denied the appeal and informed Mr. Moore that he could seek judicial review. Id., CIA Ex. E. In handling the same FOIA request, on approximately April 2, 2008, the FBI referred three pages of an FBI report dated February 1956 ("1956 FBI Report") to the CIA for coordination, as required by Executive Order 12,958, section 3.6(b). Id., Hardy Decl. ¶¶ 40, 43; Id., DiMaio Decl. ¶ 11. The CIA responded on April 21, 2008, asking the FBI to withhold certain "CIA-originated information" on the basis of FOIA Exemption (b)(1) in order to protect intelligence sources and methods that are classified pursuant to Executive Order 12958, section 1.4(c). Id., DiMaio Decl. ¶ 11. The FBI provided the partially redacted document to Mr. Moore on May 9, 2008. Compl. ¶ 19.

Plaintiffs sued on July 23, 2009, challenging, inter alia, the CIA's refusal to confirm or deny the existence of agency records responsive to their FOIA request.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who, "after adequate time for discovery and upon motion... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Id. at 252.

Cases brought under the Freedom of Information Act are typically and appropriately decided on motions for summary judgment. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, a court may award summary judgment solely on the basis of information provided by a federal agency in declarations when the declarations describe "the documents and 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). Such declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).


Federal district courts have original jurisdiction over civil actions arising under federal statutes, 28 U.S.C. § 1331, such as this FOIA suit. FOIA requires agencies of the federal government to release virtually any and all records to the public upon request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). FOIA grants jurisdiction to the federal district courts where a federal agency has wrongfully withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). Therefore, to prevail in a FOIA case, a plaintiff must show that a federal agency has (1) improperly (2) withheld (3) agency records. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). The defendant agency bears the burden of justifying nondisclosure under FOIA and demonstrating that the agency has adequately segregated exempt from non-exempt information. See 5 U.S.C. § 552(a)(4)(B); Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). A suit is only authorized under FOIA against federal agencies and injunctive relief is only available to remedy an agency's improper withholding of information. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B), (f)(1). Once the requested records have been produced, there is no longer a case or controversy and the FOIA action becomes moot. See Armstrong v. Executive Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996); Trueblood v. U.S. Dep't of the Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996).

Exemption 1 of FOIA "protects matters 'specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and... in fact properly classified pursuant to such Executive order.'" Larson v. U.S. Dep't of State, 565 F.3d 857, 861 (D.C. Cir. 2009); see 5 U.S.C. § 552(b)(1). Pursuant to Executive Order 12,958, an agency may properly withhold information if its disclosure could reasonably be expected to damage the national security of the United States and the agency is able to identify or describe the damage. See Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995); see also Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007). Damage to national security may be posited only ...

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