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Bryant v. Central Intelligence Agency

September 30, 2010

LARRY W. BRYANT, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Court Judge

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act case is defendants' motion for partial summary judgment. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, and for the reasons set forth below, the defendants' motion for partial summary judgment is hereby GRANTED.

I. BACKGROUND

A. The Initial FOIA Request and Complaint

Plaintiff describes himself as the Director of the Washington D.C. Office of Citizens Against UFO Secrecy who "gathers, researches, and publishes documents and information and analysis concerning Unidentified Flying Objects." Compl. ¶ 4. In addition, plaintiff is a columnist for the monthly periodical UFO Magazine. Compl. ¶ 4. In August of 2008 the plaintiff sent the Central Intelligence Agency ("CIA") a request for information under the Freedom of Information Act ("FOIA"). In particular, plaintiff requested "CIA-received and CIA-generated records as pertain to... cases of airborne UFO encounters reportedly occurring since Nov. 17, 1986." Compl. Ex. A. Plaintiff also specifically requested information relating to "a 1987 special meeting at FAA headquarters in Washington D.C. to discuss and evaluate certain official evidence of the intrusive UFO encounter experienced on Nov. 17, 1986 by the Japanese flight crew (No. 1628) of a 747 cargo jet." Compl. Ex. A. In the same request, he asked to be granted status as a representative of the news media and thereby be exempt from certain fees typically charged for a FOIA request. Compl. Ex. A.

In their response to plaintiff's FOIA request, the CIA offered to provide the plaintiff with 2,779 pages of materials at the cost of $267.90, describing the materials as records already located in response to "numerous previous request[s]" for information regarding UFOs. Compl. Ex. B. Plaintiff's request for a fee waiver was denied on the grounds that "the information [plaintiff] seek[s] is already in the public domain and its re-release would not likely contribute significantly to public understanding of the operations and activities of the United States Government." Compl. Ex. B. Plaintiff appealed the agency's decision, including the denial of the request for a fee waiver. Compl. Ex. C. The CIA again denied the request for a fee waiver. Compl. Ex. D. In their letter denying the appeal, the CIA also explained that plaintiff would be charged the $267.90 irrespective of whether he was placed in the news media fee category.*fn1 Compl. Ex. D.

Plaintiff brought this action on May 20, 2009. The first count*fn2 of the Complaint alleges that defendants "did not use the level of diligence and good faith" in responding to his request and that defendants "conducted no search to respond to Plaintiff's FOIA Request." Compl. ¶ 12. The second count alleges that, as a representative of the news media, he is entitled to a waiver of all fees except photocopying fees associated with his FOIA request. Compl. ¶ 17. Plaintiff further contends that defendants used an improperly narrow definition of "news media representative status" when they refused to grant him such status. Compl. ¶ 19. Plaintiff seeks a declaration that he was improperly denied news media representative status, an order that the defendants grant him such status, and damages including attorneys fees. Compl. ¶ 6.

B. Reopening of Plaintiff's FOIA Request

On June 23, 2009, roughly one month after plaintiff filed this lawsuit, the CIA sent a letter to plaintiff informing plaintiff that, (i) the CIA would reopen his FOIA request, (ii) the CIA would conduct another search for records in existence through June 15, 2009, and (iii) the CIA would place the plaintiff in the news media fee category and only charge him for photocopying costs. Defs.' Summ. J. Mot. Ex. E. According to defendants, new searches were then conducted for responsive information, and the CIA followed up with another letter dated October 21, 2009. Defs.' Summ. J. Mot. Ex. E.

The October 21st letter informed the plaintiff that new materials responsive to his general request had been located. Defs.' Summ. J. Mot. Ex. F. However, because the newly-identified responsive materials were not "originated by the CIA," the request would need to be referred to the originating agencies. Defs.' Summ. J. Mot. Ex. F. Plaintiff received subsequent FOIA response letters from the NSA and the Department of State regarding these additional materials, including five pages of materials with redactions from the Department of State. Pl.'s Resp. to Defs.' Statement of Material Facts ¶ 36.

In their pending motion for partial summary judgment*fn3, defendants seek a ruling that they fulfilled their FOIA obligations in conducting a reasonably diligent search. In addition, they argue that plaintiff's second count is moot because plaintiff was placed in the media fee category subsequent to the filing of the complaint.

II. STANDARD OF REVIEW

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based on the information provided by the agency in affidavits or declarations when the affidavits or 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); see also ...


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