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Mark Porter v. Central Intelligence Agency

April 21, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Mark Porter brings this action against Defendant Central Intelligence Agency pursuant to the Freedom of Information Act, 5 U.S.C. § 552. He claims that Defendant has wrongfully withheld documents that he is entitled to under FOIA. Defendant has now moved for summary judgment. The Court has reviewed the Motion, Plaintiff's Opposition, and Defendant's Reply.


Plaintiff has filed three separate FOIA requests for the same information over the past 14 years. Although the procedural history of these requests is taken from defense evidence, as well a prior reported judicial decision, it is undisputed.*fn1

A. The 1997 Request

On July 9, 1997, Plaintiff submitted his initial FOIA request to Defendant seeking "all reports, results of investigation, surveillance data, internal memorandum or other documents concerning Mr. Mark S. Porter between the years 1986 and 1991 while Mr. Porter was employed by Bendix Field Engineering Corporation." Def's Mot. for Summary Judgment, Declaration of Delores M. Nelson at ¶ 9.

In a letter dated October 16, 1997, Defendant informed Plaintiff that, after searching relevant record systems, it had determined "that there [were] no documents available to him under FOIA." Nelson Decl. at ¶ 13. Ten days later, Plaintiff appealed this decision to the Agency Release Panel. Id. at ¶ 14. The Agency Release Panel affirmed Defendant's initial determination and informed Plaintiff by a letter dated April 1, 1998, that he had a right to seek judicial review of this determination in United States District Court. Id. at ¶ 16.

Following the 1998 letter, Plaintiff took no action for more than seven years. Porter v. Central Intelligence Agency, 579 F. Supp. 2d 121, 123 (D.D.C. 2008). Finally, on November 7, 2005, his attorney wrote to "request information" regarding the 1997 FOIA inquiry. Id. Defendant responded on May 23, 2006, by sending a copy of the 1998 letter. Id.

B. The 2006 Request

That August, Plaintiff's attorney once again appealed Defendant's 1997 search that found no documents. Nelson Decl. at ¶ 20. Defendant understood Plaintiff's appeal to be a second separate FOIA request for the same material. As such, Defendant expanded the timeframe of the original search and informed Plaintiff that it would "search for CIA originated records existing through [September 7, 2006]." Porter, 579 F. Supp. 2d at 123. Defendant's search produced one document, which it released to Plaintiff, with redactions, along with an accompanying letter on October 19, 2006. Id. at 123-24. The letter explained Plaintiff's right to appeal the determination within 45 days. Id. at 124. Instead of filing an appeal with Defendant, Plaintiff filed an action in this District claiming that he was entitled to the requested information under FOIA and that Defendant had no basis for denying his request. Id.

Shortly thereafter, Defendant filed a motion to dismiss or, in the alternative, for summary judgment. Id. at 122. Judge Gladys Kessler granted Defendant's motion for summary judgment on September 30, 2008, holding that: (1) Plaintiff's letter could not serve as an appeal of the 1998 letter because the six-year statute of limitations had run; and (2) assuming Plaintiff's May 2006 letter was a new FOIA request, he had failed to exhaust his administrative remedies. Id. at 127, 129. This ruling terminated that case.

C. The 2009 Request

On January 15, 2009, Plaintiff sent his third FOIA request to Defendant, again seeking "information regarding Mr. Mark Porter." Nelson Decl. at ¶ 25. After acknowledging receipt, Defendant informed Plaintiff by letter on March 27, 2009, that it interpreted his request as a "request for an updated search." Id. at ¶ 28. As a result, Defendant explained that it would limit its search to the timeframe from his last request, September 7, 2006, to the date of the letter, March 27, 2009. Id. Finally, Defendant informed Plaintiff that it would be unable to complete the process in the statutory 20-day limit, and he could treat this decision as a denial and appeal to the Agency Release Panel. Id. Plaintiff did not appeal at that time, so Defendant proceeded with the updated search. Id.

Defendant's Information Management Services division is the gatekeeper for all FOIA requests made to the CIA. Id. at ¶ 6. Because Defendant's record systems are decentralized and compartmentalized, IMS must first determine which systems are likely to possess records responsive to a particular request. Id. at ¶ 7-8. An experienced IMS professional therefore analyzes each request and determines which databases to search. Id. at ¶ 7. The point person for each database is then informed of the request, and he determines the best method for searching the records for responsive documents.*fn2 Id. Having determined the likely repositories for responsive documents, Defendant had both the National Clandestine Service ("NCS") and the Directorate of Support ("DS") perform searches by inputting Plaintiff's name, variants thereof, and Plaintiff's Social Security number into databases capable of searching by the relevant identifiers. Id. at ¶ 30. No matching records were identified. Id.

Defendant informed Plaintiff on May 28, 2009, that its updated search had failed to produce any documents additional to those related to Plaintiff's previous FOIA requests. Id. at ΒΆ 31. This letter also informed Plaintiff that Defendant had interpreted his request as a request for an updated search, and that Plaintiff could appeal this decision within 45 ...

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