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Ralph Schoenman v. Federal Bureau of Investigation

January 21, 2011

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 ("Schoenman"), a political activist and author, commenced this action against a variety of named and unnamed agencies, including the Central Intelligence Agency (the "CIA"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 (the "Privacy Act"), 5 U.S.C. § 552a, seeking an array of records concerning himself. This Court previously granted in large part the CIA's [64] Motion for Summary Judgment and denied in large part Schoenman's [70] Cross-Motion for Partial Summary Judgment. However, the Court held in abeyance both motions as they pertained to a single, discrete issue-namely, the adequacy of the CIA's search for records within two component units of the CIA, including the propriety of the CIA's failure to produce "index references." The parties were instructed to, and did, submit supplemental materials addressing this discrete issue. Now, based upon those submissions, the relevant authorities, and the record as a whole, the Court finds in the CIA's favor and shall therefore GRANT the CIA's [64] Motion for Summary Judgment and DENY Schoenman's [70] Cross-Motion for Partial Summary Judgment on this remaining issue.

I. BACKGROUND

The Court assumes familiarity with its prior opinions in this action, which set forth in detail the history of this case, and shall therefore only address the factual and procedural background necessary to address the discrete issue currently before the Court.

A. Factual Background

All CIA records are*fn1 maintained by one of the directorates or independent offices that report to the Director of Central Intelligence, which include:

* The Director of Central Intelligence Area (the "DCI Area"), which includes various independent offices reporting directly to the Director of Central Intelligence, such as the Office of Inspector General, the Office of General Counsel, and the Office of Public Affairs;

* The Directorate of Intelligence (the "DI"), which analyzes, interprets, and forecasts foreign intelligence issues and produces intelligence reports for dissemination to policymakers in the United States;

* The Directorate of Science and Technology (the "DS&T"), which creates and applies technologies for intelligence requirements and maintains records concerning foreign open source information;

* The Directorate of Operations (the "DO"), which is responsible for the clandestine collection of foreign intelligence information; and

* The Mission Support Offices (the "MSO"), which is the CIA's administrative support arm responsible for personnel and security issues, including investigations of individuals having a relationship with the CIA.

Decl. of Ralph S. DeMaio ("DeMaio Decl."), Docket No. [64-1], ¶¶ 22-27.

The CIA's Office of Information Management Services ("IMS") serves as the initial reception point for all FOIA and Privacy Act requests directed to the CIA. Id. ¶ 28. Upon receiving a request, IMS personnel determine which areas of the CIA reasonably might be expected to possess responsive records and forward copies of the request to those areas with instructions to search for responsive documents. Id. The tasked areas then conduct searches among their component parts and record systems that reasonably might be expected to have information responsive to the request. Id. Because they reflect and respond to the established responsibilities and needs of specific areas within the CIA, records systems vary among the CIA's component parts. Id. ¶ 21. As a result, the CIA's ability to retrieve information from a given records system depends upon the type of information stored in that system and the way the system is designed to retrieve information. Id.

On July 24, 2001, Schoenman, through counsel, submitted a request for records to the CIA under FOIA and the Privacy Act (the "Request"). Id. ¶ 9. Schoenman sought records pertaining to himself, all "index references," and all records used by the CIA in conducting its search for records.*fn2 Id. The CIA processed Schoenman's Request using the procedures set forth above-that is, the Request was received by IMS, reviewed by IMS personnel, and then forwarded to those areas within the CIA that were reasonably likely to have responsive records. Id. ¶ 34. Specifically, based upon its determination that they were the two areas within the CIA likely to possess responsive records, IMS personnel instructed the DO and the MSO to search for records responsive to Schoenman's Request. Id. The precise contours of those searches are discussed more fully below. See infra Part III.A. Meanwhile, given the nature of the missions pursued by the DCI Area, the DI, and the DS&T, IMS personnel determined that those areas were not likely to have any records responsive to Schoenman's Request and therefore did not instruct those areas to search for responsive records. DeMaio Decl. ¶37.

B. Procedural History

Schoenman commenced this action on December 20, 2004 against a variety of named and unnamed agencies, including the CIA. See Compl., Docket No. [1]. In the succeeding years, his claims have been successively winnowed down by orders of this Court. Most notably, on March 19, 2009, this Court granted in large part the CIA's [64] Motion for Summary Judgment and denied in large part Schoenman's [70] Cross-Motion for Partial Summary Judgment. See Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202 (CKK), 2009 WL 763065 (D.D.C. Mar. 19, 2009). Specifically, the Court found in the CIA's favor as follows: (a) the CIA's search for records was not inadequate on the basis that it excluded the DCI Area and the DI from the search for responsive records;*fn3 (b) the CIA properly invoked various exceptions to production in withholding responsive information either identified during its own search or referred to it by other agencies; (c) the CIA set forth a sufficiently particularized segregability analysis; and (d) Schoenman failed to raise a sufficiently compelling question as to the CIA's good faith such that would warrant the taking of discovery. See generally id. However, the Court held in abeyance the parties' cross-motions on a single, discrete issue: the adequacy of the CIA's search for records within the MSO and the DO, including the propriety of the CIA's failure to produce "index references." See id. at *15-18.

In its prior opinion addressing the parties' respective cross-motions for summary judgment, the Court found that, while the CIA had provided some information concerning the search for records within the MSO and the DO, its description of the search-confined to two terse paragraphs-was insufficiently detailed to demonstrate compliance with the applicable legal standard. Id. at *15. Indeed, while the CIA "provided a lengthy description of [its] general process for complying" with requests, it did not offer any detail "as to how the DO and the MSO conducted their record searches" in this case, nor provided a description of the record systems utilized by those component units of the CIA. Id. at *15-16. Acknowledging that the sufficiency of the CIA's showing was a closer question than in the guiding precedents, the Court concluded that the most prudent course was to hold the issue in abeyance while the CIA provided a more expansive description of the search it conducted within the MSO and the DO. Id. at *16.

Meanwhile, with one exception, the Court uniformly rejected Schoenman's contentions that the CIA's search was inadequate based upon his speculation that the CIA should have produced certain documents in response to his Request. Id. at *16-18. The one exception pertained to Schoenman's request for "all index references," which the CIA admittedly had not produced. Id. at *18. Because the CIA had not offered any explanation as to why these documents were not produced, the Court instructed the CIA, in its supplemental materials, to "provide an explanation for its failure to provide 'index references' to [Schoenman], as requested.'" Id.

Consistent with the Court's directives, on April 10, 2009, the CIA filed supplemental materials purporting to address the Court's concerns. See Def.'s Notice of Filing, Docket No. [112]; Fourth Decl. of Ralph S. DiMaio ("Suppl. DeMaio Decl."), Docket No. [112-1]. On May1, 2009, Schoenman filed his opposition and response to those supplemental materials. See Pl.'s Suppl. Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Pl.'s Opp'n."), Docket No. [116]. On May 13, 2009, the CIA filed a reply. See Def. Central Intelligence Agency's Reply to Pl.'s Suppl. Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Def.'s Reply"), Docket No. [117]. The matter was therefore fully briefed and ripe for adjudication.

Nevertheless, on August 15, 2009, without first seeking the Court's leave, Schoenman filed additional materials that he contends demonstrate that the CIA failed to conduct an adequate search for responsive records. See Pl.'s Notice of Filing, Docket No. [122]. On October 12, 2009, Schoenman sought the Court's leave to further supplement the record with yet more materials that he contends bear upon the adequacy of the CIA's search for records (the "Motion to Supplement the Record")-a motion which remains pending and is resolved herein. See Pl.'s Mot. for Leave to Further Supplement His Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Pl.'s Mot. to Suppl. Mem."), Docket No. [124-1]. On October 30, 2009, the CIA filed an opposition to Schoenman's Motion to Supplement the Record. See Def.'s Opp'n to Pl.'s Mot. for Leave to Further Supplement His Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J., Docket No. [126]. On ...


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