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Whitaker v. Central Intelligence Agency

United States District Court, D. Columbia.

August 15, 2014

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

Page 56

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. By its previous Order and Memorandum Opinion in this case, this Court granted in part and denied in part Defendants' [5] Motion for Summary Judgment. See Order, ECF No. [24]; Mem. Op., ECF No. [25]. In response to this ruling, Defendants the Central Intelligence Agency and the United States Department of State (the only remaining Defendants in this case) have filed the present [28] Renewed Motion for Summary Judgment. In response to this filing, Plaintiff has filed a [29] Notice of Non-Opposition to Defendants' Renewed Motion for Summary Judgment. Upon consideration of the pleadings [1], the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [28] Renewed Motion for Summary Judgment. Accordingly, this matter is DISMISSED WITH PREJUDICE.

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.

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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 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 [Plaintiffs] father indexed to [Plaintiffs] or [Plaintiffs] 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. Plaintiff 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 Plaintiffs appeal, the CIA searched its repository of records containing information about FOIA requests (CIA-14) and searched for any responsive records relating to the Plaintiffs FOIA requests predating March 30, 2011 -- the date the CIA received and accepted Plaintiffs appeal. Id. ¶ ¶ 81-85.

Because the part of Plaintiffs 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 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

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Central Foreign Policy records, resulting in the retrieval of 19 responsive documents 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 ...

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