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Majed Subh v. Central Intelligence Agency

January 19, 2011

MAJED SUBH, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the Central Intelligence Agency ("CIA"). This matter is currently before the Court on the CIA's motion for summary judgment. For the reasons discussed below, the motion will be granted.

I. FACTS

In March 2009, Plaintiff submitted a request to the United States Army ("Army"), Intelligence and Security Command ("INSCOM") for "information for the reason and cause of the INSCOM declination of potential employment determination by [Global Linguist Solutions ("GLS")]." Mem. of Points and Authorities in Support of Defendant's Mot. for Summ. J. ("Def.'s Mem.") [Dkt. # 8], Attach. 1 ("Sleeper Decl."), Ex. A (FOIA Request dated March 3, 2009).*fn1

A search of the Defense Central Index of Investigations ("DCII") yielded an Army intelligence investigative record pertaining to Plaintiff, and a search of the Joint Personnel Adjudication System ("JPAS") yielded no responsive records. Sleeper Decl. ¶ 7. On April 16, 2009, the Army released to Plaintiff 128 pages of records after having withheld certain information concerning a third party under FOIA Exemption 6. Id. ¶ 8; see id., Ex. D (Letter to Plaintiff from S.J. Butterfield, Director, Freedom of Information/Privacy Office, Investigative Records Repository, INSCOM, dated April 16, 2009).

Among the responsive records was a "one-page document entitled CI/FP Intelligence Checks," described as a "Counterintelligence and Force Protection Check worksheet that documents intelligence checks such as DCII, JPAS and Fingerprints, as well as the date and results of Agency record checks such as [Federal Bureau of Investigation ("FBI")] and CIA checks." Id. ¶ 9. The Army referred this document to both the FBI and the CIA. Id. ¶¶ 10-11; see id., Ex. E (Memoranda from S.J. Butterfield to the FBI and the CIA dated May 27, 2009).

The FBI authorized release of the document in its entirety. Sleeper Decl. ¶ 14; see id., Ex. H (Memorandum from David M. Hardy, Record/Information Dissemination Section, Records Management Division, FBI, dated June 24, 2009). The CIA, however, authorized the release of the document "in segregable form with deletions made on the basis of FOIA exemptions (b)(3) and [Privacy Act] exemption (j)(1)." Id., ¶ 13; see id., Ex. G (Letter from D.M. Nelson to Freedom of Information and Privacy Office, INSCOM, dated June 17, 2009). The Army in turn released the redacted document to Plaintiff. See id., Ex. I (Letter to Plaintiff from S.J. Butterfield dated June 30, 2009 with attachments). Plaintiff filed an appeal of these decisions to the Army's Freedom of Information and Privacy Division, Privacy Review Board, and the appeal was denied. Id. ¶¶ 17-18; see id., Ex. K-L (Letter from Plaintiff to the Privacy Act Review Board and Letter to Plaintiff from Steven A. Raho, III, Chairman, Department of the Army Privacy Review Board, dated December 18, 2009, respectively).

In addition, Plaintiff sent a letter to the CIA appealing its "withholding in order to release all of his documents in detail." Def.'s Mem., Attach. 2 ("DiMaio Decl."), Ex. B (Letter from Plaintiff to Delores M. Nelson, Information & Privacy Coordinator, CIA). The CIA's Agency Release Panel ("ARP") reviewed Plaintiff's appeal "and determined that the redacted portions . . . must continue to be withheld on the basis of FOIA exemption (b)(3) and [Privacy Act] exemption (j)(1)." DiMaio Decl., Ex. D (Letter from D.M. Nelson to Plaintiff dated September 14, 2009). Plaintiff now seeks judicial review of the ARP's decision. See Compl. [Dkt. # 1].

II. DISCUSSION

A. Summary Judgment in a FOIA Case

"A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim." Fed. R. Civ. P. 56(a). The Court generally should render the judgment sought "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)(2). 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). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, 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 solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when they 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 Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or 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. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).*fn2

B. Exemption 3

As stated above, the one-page document at issue is entitled "CI/FP Intelligence Checks," and contained a Counterintelligence and Force Protection Check worksheet documenting intelligence checks on Plaintiff by the FBI and the CIA. Sleeper Decl. ¶ 9; DiMaio Decl. ¶ 21. The CIA acknowledges the fact that it conducted an intelligence check on Plaintiff, and redacts only the result, see Sleeper Decl., Ex. I, described as information "pertaining to CIA intelligence methods and functions," on the ...


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