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Whitaker v. Central Intelligence Agency

United States District Court, D. Columbia.

March 10, 2014

STEPHEN WHITAKER, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendant

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For STEPHEN WHITAKER, Plaintiff: Kelly Brian McClanahan, LEAD ATTORNEY, NATIONAL SECURITY COUNSELORS, Arlington, VA.

For DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, Defendants: Mitchell P. Zeff, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

Plaintiff Stephen Whitaker has filed suit against Defendants the Central Intelligence Agency, the United States Department of Defense, and the United States Department of State challenging Defendants' processing of his requests pursuant to the Freedom of Information Act and the Privacy Act. Presently before the Court is Defendants' [5] Motion for Summary Judgment. Upon consideration of the pleadings [1], the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Defendants' [5] Motion for Summary Judgment. Specifically, the Court GRANTS Defendants' motion with respect to (1) Plaintiff's claims against Defendant Department of Defense, (2) Defendant CIA's invocation of FOIA Exemption (b)(5), (3) the adequacy of Defendant State Department's search with respect to its failure to locate records in the Office of Passport Services, (4) Defendant State Department's failure to process Plaintiff's requests for his father's records under the Privacy Act, (5) Defendant State Department's invocation of Exemption (b)(5), and (6) Defendant State Department's invocation of Exemption (b)(6). The Court DENIES WITHOUT PREJUDICE Defendants' motion with respect to (1) Defendant CIA's invocation of FOIA Exemption (b)(3) pursuant to the CIA Act of 1949 and the National Security Act of 1947, and (2) the adequacy of Defendant State Department's search with respect to its failure to search for records regarding Major Lawrence Eckmann.

I. BACKGROUND

A. Factual Background

Between January 2008 and January 2012, Plaintiff filed a series of requests with Defendants pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. These requests sought records pertaining to the disappearance of a DC-3 airplane, three other planes, Harold Whitaker (Plaintiff's father) and four other individuals, the United States Army's investigation into the disappearance of the plane, the Plaintiff himself, and the Plaintiff's previous FOIA requests. The details of these requests are set out below.

1. CIA

On February 15, 2010, Plaintiff sent a FOIA request to the CIA requesting information " relat[ing] in any way to five individuals," including Plaintiff's father, Harold W. Whitaker, and " four DC-3 aircraft." See Defs.' MSJ, Ex. A (Declaration of Martha M. Lutz, Information Review Officer, Director's Area, Central Intelligence Agency) (" Lutz Decl." ) ¶ 9; Compl. at 5. Plaintiff defined the scope of his request to include any information that would reveal whether " any of these persons or aircraft were later found to

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be employed or contracted by the CIA for service in Central America or elsewhere." Lutz Decl. ¶ 9. The CIA acknowledged and responded to this request by letter on February 24, 2010, assigning to the request Reference Number F-2010-00611. Id. ¶ 10. In this letter, Defendant CIA issued a Glomar response, refusing to confirm or deny the existence or non-existence of records responsive to Plaintiff's request. Id.; see also Phillippi v. CIA, 546 F.2d 1009, 1013, 178 U.S.App.D.C. 243 (D.C. Cir. 1976) (affirming CIA's use of the " neither confirm nor deny" response to a FOIA request for records concerning CIA's reported contacts with the media regarding Howard Hughes' ship, the " Hughes Glomar Explorer" ). Plaintiff appealed the CIA's Glomar response in a letter dated April 8, 2010, and the CIA's Agency Release Panel denied the appeal on June 27, 2011. Lutz Decl. ¶ ¶ 11, 13.

On March 24, 2011, Plaintiff sent a second request to the CIA under the FOIA and the Privacy Act, requesting " all records about [Plaintiff] and [Plaintiff's] father indexed to [Plaintiff's] or [Plaintiff's] deceased father's name." Id. ¶ 14. Defendant CIA separated the requests pertaining to each individual and assigned the request for information pertaining to the Plaintiff as Request No. P-2011-00460. Id. ¶ 15. The CIA's search for records that might reflect an open Agency affiliation or otherwise acknowledge Agency affiliation existing through March 30, 2011 yielded no responsive records. Id. The CIA also asserted a Glomar response regarding any records that might " reveal a classified connection to the CIA." Id. Defendant appealed the adequacy of Defendant CIA's search and its Glomar response on May 12, 2011, and the CIA accepted this appeal on August 19, 2010. Id. ¶ ¶ 16, 20. In response to Plaintiff's appeal, the CIA searched its repository of records containing information about FOIA requests (CIA-14) and searched for any responsive records relating to the Plaintiff's FOIA requests predating March 30, 2011 -- the date the CIA received and accepted Plaintiff's appeal. Id. ¶ ¶ 81-85.

Because the part of Plaintiff's second FOIA request to Defendant CIA requesting information pertaining to Harold W. Whitaker was duplicative of the request in No. F-2010-00611, it was incorporated into the processing of that earlier request, which was on appeal at the time. Id. ¶ 16.

2. Department of Defense

On November 19, 2009, Plaintiff submitted a FOIA request to the United States Air Force (" USAF" ) for records " relating to the Ramstein U.S. Air Force search for missing aircraft, beginning 3 October 1980 for a DC-3 departed [sic] Cuatro Vientos Airport in Madrid Spain for destination Frankfurt, waypoint Perpignon France." The scope of the request included any referrals to or inquiry of the Federal Bureau of Investigation (" FBI" ), the International Criminal Police Organization (" INTERPOL" ), or other agencies, as well as any subsequent search efforts or investigations. See Defs.' MSJ, Ex. B (Declaration of Valerie Bufano, FOIA Manager, Ramstein Air Force Base, United States Air Force) (" Bufano Decl." ) ¶ ¶ 4, 6; Comp, at 9.

The request was assigned Request No. 2010-01041-F. Bufano Decl. ¶ 4. The Ramstein FOIA Office forwarded the request to the Ramstein Safety office (" 86 AW/SEG" ), the HQ Safety Center FOIA Office (" HQ AFSC/JAR" ) at Kirkland Air Force Base, the 435 Air Ground Operations Wing Office (" 435 AGOW/HO" ), the Air Force Office of Special Investigations Headquarters (" HQ AFOSI" ), the USAF Europe Safety Office (" USAFE/SEF" ), the USAF Europe History Office

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(" USAFE/HO" ), and the USAF Europe Legal Office, Administrative Law Branch. Each of these offices searched their files and discovered no records responsive to Plaintiff's request. Id. ¶ ¶ 6-13. On September 17, 2010, the Ramstein USAF Base closed the request and informed Plaintiff that no responsive records were located. Plaintiff did not appeal the adequacy of Defendant's search. Bufano Decl. ¶ 4; Compl. at 9.

On August 15, 2011, Plaintiff resubmitted Request No. 2010-01041-F to the USAF; the new request was designated Request No. 2011-06326-F. Compl. at 9; Bufano Decl. ¶ 4. The USAF denied the second request on August 16, 2011 as duplicative of the earlier request. Id. Plaintiff appealed the denial on August 19, 2011 and the appeal was denied on the same " duplicate" basis.

On May 23, 2011, the U.S. Army Human Resources Command (" HRC" ) received Plaintiff's FOIA/PA request, which was forwarded to it from the Army's FOIA Office. See Defs.' MSJ, Ex. C (Declaration of Michael Coen, Information Release Specialist, HRC, United States Army) (" Coen Decl." ) at ¶ 5. The request on behalf of Plaintiff sought " [c]opies of all U.S. Army records about his father, Harold Whitaker . . . and the investigation into his disappearance in the DC-3 aircraft over Spain on 3 October 1980, along with Lawrence J. Eckmann, a Major in the U.S. Army." Id. HRC records were searched in the Total Army Personnel Database/Soldier Management System, which " maintains the Official Military Personnel Files for all Active Duty members of the United States Army and those individuals who have recently been separated." Id. ¶ 6. HRC used the names Harold William Whitaker and Lawrence J. Eckmann as well as the social security number provided for Harold Whitaker, but no responsive records were located. Id. Plaintiff was notified of the search results in writing on May 24, 2011. Id.

On June 8, 2011, the U.S. Army Criminal Investigation Command (" USACIDC" ) Crime Record Center (" CRC" ) received Plaintiff's FOIA request, which was forwarded to it from the Army's FOIA office. See Defs.' MSJ, Ex. D (Declaration of Michelle Kardelis, Chief of the Freedom Information Act and Privacy Act Division, USACIDC CRC, United States Army) (" Kardelis Decl." ) at ¶ 5. The USACIDC searched its files for records relating to Harold W. Whitaker and Lawrence J. Eckmann (Whitaker's co-pilot) as provided in the request. No records responsive to the request were located. Id. ¶ ¶ 6-8. Plaintiff requested confirmation of the USACIDC's search parameters on June 25, 2011. The USACIDC responded on June 12, 2011, confirming the search parameters it used and explaining the USACIDC's file management system, as well as Plaintiff's right to appeal the search. Compl. at 8; Kardelis Decl. ¶ 8.

3. Department of State

On January 3, 2008, Plaintiff submitted a FOIA and Privacy Act request to the Department of State, seeking " any and all investigative/travel records on file" relating to a " [m]issing airplane investigation report resulting from 10.03.80 flight gone missing over Spain with U.S. citizen/pilot Harold William Whitaker and one other co-pilot." See Compl. ¶ 10; Defs.' MSJ, Ex. E (Declaration of Sheryl L. Winter, Director of the Office of Information Programs and Services of the United States Department of State) (" Walter Decl." ) ¶ 4. The request was assigned Case Control Number 200800250. Id. ¶ 5. The Office of Information Programs and Services (" IPS" ) conducted a two-part search of its Central Foreign Policy records, resulting in the retrieval of 19 responsive documents

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for the first part, and two responsive documents for the second part. Id. ¶ ¶ 8-9. The first group of documents was released in full on June 22, 2009, and the second group was released in full on August 5, 2009. Id.

On July 31, 2008, Plaintiff submitted another FOIA and Privacy Act request to the Department of State seeking records related to:

Harold William Whitaker . . . Including travel, visa, special requests, federal benefits, piloting or travel in aircraft, DISAPPEARANCE in DC-3 Aricraft [sic] over Spain on 3 October 1980, search, coordination with European governments in search, correspondence with Adelynn Hiller Whitaker (wife who is since deceased) issuance of a Certificate of Death, Insurance, enduring notification of aircraft wreckage requests, etc.

Compl. ¶ 11; Walter Decl. ¶ 10. This request was assigned Case Control Number 200904782. Walter Decl. ¶ 11. The IPS searched the Central Foreign Policy Records and Office of Passport Services for records responsive to this request. The Central Foreign Policy Records search yielded the 19 documents already disclosed in the first part of the search from Case Number 200800250, while the Office of Passport Services search yielded no responsive documents. Id. ¶ ¶ 13, 16.

On April 29, 2011, Plaintiff submitted a third FOIA and Privacy Act request to the Department of State, seeking records related to the Department's administrative processing of all his previous FOIA requests. Compl. ¶ 18; Walter Decl. ¶ 17. This request was assigned Case Control Number 201103392. Walter Decl. ¶ 18.

On January 20, 2012, Plaintiff submitted another FOIA and Privacy Act request to the Department of State, seeking " all records which were classified as 'non-responsive' or 'irrelevant'" in processing Request No. 200904872. Compl. ¶ 25; Walter Decl. ¶ 20. This request was assigned FOIA Case Control Number F-2012-21285. Walter Decl. ¶ 21. The IPS reviewed 10 documents responsive to this request, withholding two, releasing seven, and referring the remaining documents to another agency, from which it originated. Id. ¶ 22. Additionally, IPS conducted supplemental searches for responsive documents, which uncovered three documents that were released in part to Plaintiff. Id.; see also Defs.' MSJ, Ex. F (Declaration of Naomi J. Ludan, FOIA and Privacy Act Disclosure Specialist for the U.S. European Command) (" Ludan Decl." ) ¶ 4.

B. Procedural History

On February 27, 2012, Plaintiff filed suit in this Court raising a variety of objections to the processing of his FOIA and Privacy Act requests by the Defendants. See generally Compl. Defendants subsequently filed their [5] Motion for Summary Judgment seeking to dismiss this case in its entirety. In his Opposition, Plaintiff narrowed the issues in dispute, withdrawing (but not conceding) his challenges to the Department of Defense's processing of his requests and effectively dismissing the Department of Defense as a Defendant. Pl.'s Opp'n at 2. In his Opposition, Plaintiff clarified that only the following issues were in dispute. With respect to the CIA, Plaintiff challenged the adequacy of the CIA's search as well as the Agency's invocation of FOIA Exemptions (b)(3) and (b)(5) to withhold information. Id. at 2-17. With respect to the Department of State, Plaintiff challenged the adequacy of the State Department's search, the State Department's failure to process Plaintiff's requests for records about his father under the Privacy Act, and the Department's invocation of FOIA Exemptions (b)(5) and (b)(6) to withhold information. Id. at 17-28.

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Defendants subsequently filed a reply in which they indicated that Plaintiff's objections to the adequacy of the CIA's search had been resolved. Defs.' Reply at 1 n.1. Plaintiff has not objected to this representation by Defendants in any subsequent filing, and thus the Court understands it to be an accurate representation of the remaining issues in dispute.

II. LEGAL STANDARD

Congress enacted FOIA to " pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that " legitimate governmental and private interests could be harmed by release of certain types of information." FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). To that end, FOIA " requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 1261-62, 179 L.Ed.2d 268 (2011). Ultimately, " disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361. For this reason, the " exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 131 S.Ct. at 1262 (citations omitted).

When presented with a motion for summary judgment in this context, the district court must conduct a " de novo" review of the record, which requires the court to " ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA." Multi Ag. Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227, 380 U.S.App.D.C. 1 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). " An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag. Media, 515 F.3d at 1227 (citation omitted). " If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011) (citations omitted). " Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509, 395 U.S.App.D.C. 138 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations " show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261, 184 U.S.App.D.C. 350 (D.C. Cir. 1977). Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1178, 316 U.S.App.D.C. 372

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(D.C. Cir. 1996). In addition, district courts are obligated to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028, 336 U.S.App.D.C. 189 (D.C. Cir. 1999).

III. DISCUSSION


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