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Dibacco v. U.S. Department of Army

United States District Court, District of Columbia

January 18, 2017

ARON DIBACCO, et al., Substitute Plaintiffs for Carl Oglesby,
U.S. DEPARTMENT OF THE ARMY, et al., Defendants.


          COLLEEN KOLLAR-KOTELLY United States District Judge

         Carl Oglesby filed suit in 1987 challenging several agencies' responses to a Freedom of Information Act (“FOIA”) request Mr. Oglesby submitted in August 1985. It is now 2017. Over the past twenty years, this case has gone through numerous rounds of summary judgment briefing and reached the United States Court of Appeals three times. Mr. Ogelsby himself died in 2011, but his daughter and the administrator of his estate have since been substituted as Plaintiffs and continue his efforts. After a very limited remand from the Court of Appeals in 2015, the latest round of cross-motions for summary judgment are currently before the Court.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court concludes that Defendants are entitled to summary judgment on all remaining issues. The Court finds that Defendants have satisfied their burden of showing that the minimal redactions made to the documents that were released to Plaintiffs during the latest appeal are justified under FOIA Exemptions 1 and 3. The Court also rejects Plaintiffs' argument that the documents produced during the appeal indicate that any Defendant has not completed an adequate search for responsive documents. Accordingly, the Court GRANTS Defendants' [327] Renewed Motion for Summary Judgment and DENIES Plaintiffs' [330] Renewed Motion for Partial Summary Judgment and Other Relief.

         I. BACKGROUND

Since the early 1970s, [Carl] Oglesby has relentlessly pursued the story of General Reinhard Gehlen, who served as chief of a Nazi spy ring during World War II and who allegedly later negotiated an agreement with the United States which allowed his spy network to continue in existence despite post-war de-nazification programs. After World War II, his group, then known as the Gehlen Organization, was reportedly reconstituted as a functioning espionage network under U.S. command. According to Oglesby, control of the Gehlen Organization shifted back to the newly-sovereign West German Federal Republic as the BND (for Bundesnachrichtendienst, or “the Federal Intelligence Service”) after ten years of U.S. control.

Oglesby v. U.S. Dep't of Army (“Oglesby II”), 79 F.3d 1172, 1175 (D.C. Cir. 1996).[2] To that end, between August 21 and September 19, 1985, Carl Oglesby submitted nearly identical Freedom of Information Act requests to the Central Intelligence Agency, the United States Departments of the Army and State, the National Security Agency, the Federal Bureau of Investigation, and the National Archives and Records Administration (“NARA”). See Oglesby v. U.S. Dep't of Army (“Oglesby I”), 920 F.2d 57, 60 (D.C. Cir. 1990). “[W]ith minor variations, ” Oglesby sought the following records from each agency:

(1) records on General Gehlen during the period 1944 through 1956;
(2) records on meetings held at Fort Hunt, Virginia, in the summer of 1945 between General Gehlen and U.S. Army General George Strong and Office of Strategic Services (“OSS”) officer Allen Dulles;
(3) records on the U.S. Army's “Operation Rusty, ” carried out in Europe between 1945 and 1948;
(4) records on post-war Nazi German underground organizations such as “Odessa, ” “Kamaradenwerk, ” “Bruderschaft, ” “Werewolves” and “Die Spinne”;
(5) records on the OSS's “Operation Sunrise” carried out in 1945; and
(6) records on Gehlen's relationship with William J. Donovan and Allen Dulles of the OSS, records on Operation Rusty and Gehlen collected by the Central Intelligence Group (“CIG”), and records on the Nazi underground organization “La Arana.”

Id. The agencies released a total of 384 pages, many with redactions, and withheld other responsive documents. Id. The Army, CIA, NARA, and NSA denied Mr. Oglesby's request for a fee waiver. Id. at 61.

         Mr. Oglesby filed suit on December 11, 1987. The District Court, per Judge Norma Holloway Johnson, granted summary judgment in favor of the Defendants. 5/22/1989 Mem. Op. & Order. On appeal, the D.C. Circuit found that Oglesby had failed to exhaust his administrative remedies with respect to his requests to the Army, CIA, FBI, NSA, and NARA, but had constructively exhausted his administrative remedies concerning his request to the Department of State. Oglesby I, 920 F.2d at 59-60. The court remanded the case, instructing Oglesby to exhaust his remedies, and leaving for the District Court the issue of whether the Department of State conducted an adequate search in response to Oglesby's request. Id.

         Following the Oglesby I decision, Oglesby exhausted his administrative remedies, and once again challenged the Defendants' responses. Oglesby II, 79 F.3d at 1176. The District Court granted summary judgment in favor of the Defendants, concluding that each Defendant agency conducted an adequate search for documents and properly withheld information pursuant to various FOIA exemptions. Id. Mr. Oglesby appealed, challenging (1) NARA's refusal to grant Oglesby a fee waiver; (2) the adequacy of the searches conducted by the Army, CIA, FBI, NSA, and State Department; (3) the adequacy of the Vaughn indices submitted by the Army, CIA, and NSA; and (4) the CIA's and Army's withholding of certain responsive documents. Id. at 1175. The D.C. Circuit agreed that the CIA and the Army failed to show that they conducted adequate searches, and that the CIA, Army, and NSA failed to adequately justify their withholdings. Id. The court affirmed the District Court in all other respects. Id. Upon remand, the Army, CIA, and NSA eventually filed a renewed motion for summary judgment. 9/25/97 Mot. for Summ. J., ECF No. [129]. Just short of one year later, Oglesby filed an opposition to the Defendants' motion and cross-moved for summary judgment. 9/14/98 Cross Mot., ECF No. [176].[3]

         On October 8, 1998, President William Clinton signed into law the “Nazi War Crimes Disclosure Act, ” or “NWCDA.” P.L. 105-246, 5 U.S.C. § 552 note. The act “required the U.S. Government to locate, declassify, and release in their entirety, with few exceptions, remaining classified records about war crimes committed by Nazi Germany and its allies.” Nazi War Crimes & Japanese Imperial Gov't Records Interagency Working Group, Final Report to the United States Congress 1 (Apr. 2007), ECF No. [244-1] (“Final Report”). To oversee the implementation of NWCDA and the Japanese-Imperial Government Disclosure Act of 2000, the President created an Interagency Working Group (“IWG” or “the working group”), consisting of the Archivist of the United States, designated representatives of the FBI, the CIA, the National Security Council, the U.S. Holocaust Memorial Museum, and the Departments of Defense, Justice, and State, as well as three public members. Id. Although General Gehlen is not considered a Nazi war criminal, “the CIA pledged to acknowledge the intelligence relationship with General Gehlen in records processed for release under the [NWCDA].” Id. at 48. Accordingly, “the CIA approved the release of the 2, 100-page Army Gehlen file, and in addition released nearly 2, 100 pages of materials relating to Gehlen from its own files as well as files on many of Gehlen's personnel and agents- including the operational information in all of these files.” Id.

         While the parties' cross-motions were pending, the Defendants submitted a declaration from William H. McNair, the Information Review Officer for the Directorate of Operations for the CIA, indicating that the Director of Central Intelligence declassified the relationship between the United States Government and the Gehlen Organization. Decl. of William H. McNair, ECF No. [242-1], at ¶ 9. In light of the declassification, the CIA indicated it needed to reprocess its previous releases to Oglesby and its referrals to the CIA from other agencies “because additional information may now be appropriate for release.” 10/31/00 Status Report, ECF No. [211], at 3. Unsure of what effect the declassification might have on the Defendants' motion for summary judgment with respect to the NSA and the Army, the Defendants withdrew the pending motion for summary judgment. Id. at 6. Oglesby noted that his cross-motion may also be moot due to the classification. 11/17/00 Order, ECF No. [214], at 2. The Court accordingly ordered the Defendants to file a status report by no later than December 11, 2000, indicating “how much time is needed to complete its review of responsive material” and “how much time is needed to prepare and file a Vaughn declaration and accompanying motion for summary judgment.” Id.

         Pursuant to the Court's November 2000 Order, the Defendants submitted a status report indicating that “recent CIA searches conducted in response to the portion of the plaintiff's FOIA request regarding General Gehlen have resulted in locating approximately 251 boxes of material, and 2, 901 folders, with documents that likely contain records regarding General Gehlen.”[4]12/11/00 Status Report, ECF No. [215], at 1-2. The Defendants explained that “CIA reviewers processing documents for release under the NWCDA [would] be most familiar with the material at issue in plaintiff's FOIA request, ” therefore the CIA proposed “incorporat[ing] the processing of plaintiff's FOIA request into the processing of the documents to be reviewed pursuant to the NWCDA.” Id. at 2. The Defendants suggested this approach would benefit Mr. Oglesby because “the CIA [would] release responsive documents to the plaintiff as they [were] released under the NWCDA, instead of waiting until all documents are processed, ” as was the CIA's general procedure in FOIA cases. Id. The Defendants estimated that the processing of all responsive documents under the NWCDA would be completed “within a year, ” but that “additional documents that go beyond the scope of the Act-which the CIA anticipates locating-will also need to be processed.” Id. Accordingly, the CIA requested two years in which to complete its review of documents and to file a Vaughn index. Id. at 3. The parties discussed many of the issues raised in the Defendants' status report during a status hearing on January 9, 2001. Noting that many of the documents were likely to be in German and thus need translating before processing, the Court asked the Defendants to submit a further status report in approximately three weeks. 1/9/01 Tr. 18:21-19:2. The Court anticipated that the Defendants would file additional status reports as the documents were being processed, but advised Plaintiffs' counsel that if he was dissatisfied with the pace at which documents were reviewed or produced, he should contact the Court and request another status hearing. Id. 20:15-21.

         In a further status report submitted on February 5, 2001, the Defendants explained that the CIA had identified “numerous code words associated with Gehlen and the Gehlen Organization, and conducted a search of the applicable records systems using these code words, ” identifying “a potential universe of over 25, 000 responsive documents.” 2/5/01 Status Report, ECF No. [216] at 2. The CIA intended to conduct another search “within the next two months” using additional search terms. Id. at 3-4. The agency estimated that the review of all potentially responsive documents, including referrals to other agencies as necessary, would take two years to complete, “but because of the many variables, the CIA suggest[ed] that it provide interim status reports on the CIA's Progress every four to six months.” Id. at 4. The Court did not issue any orders in response to the February 2001 status report. In fact, between February 2001 and December 2011, neither party submitted any documentation to the Court, save notice of change of addresses for counsel and notices of substitution of counsel for the Defendants.

         Nearly eleven years after the Defendants' last status report, the Plaintiffs filed a motion to substitute Ms. DiBacco and Ms. Webster as Plaintiffs, which Judge James E. Boasberg granted in his capacity as the motions Judge. 12/1/11 Mot., ECF No. [224]; 1/5/12 Minute Order. The Plaintiffs then moved to compel the Defendants to, among other things, describe the searches conducted for potentially responsive documents, provide copies of all draft status reports created after February 2001, provide copies of all Vaughn indices submitted to the Plaintiffs since February 2001, “[l]ist and provide copies of all correspondence which was sent to Carl Oglesby or his attorney regarding this case subsequent to the February 5, 2001 status report, ” and “[l]ist and provide copies of all records released pursuant to this lawsuit subsequent to the February 5, 2001 status report.” Pls.' Mot. to Compel, ECF No. [227]. Once the Plaintiffs' motion was fully briefed, the case was randomly reassigned to the undersigned. 5/30/12 Reassignment of Civil Case, ECF No. [237]. The Court promptly denied the Plaintiffs' motion to compel, and ordered the parties to submit a proposed briefing schedule for dispositive motions. 5/30/12 Minute Order.

         The parties then filed and briefed new cross motions for summary judgment. On September 26, 2013, the Court granted Defendants' [240] Renewed Motion for Summary Judgment and denied Plaintiffs' [241] Cross-Motion for Summary Judgment. 9/26/2013 Order, ECF No. [256]. The Court held that Defendants had met their burden of showing, through detailed declarations and Vaughn indices, that the CIA and the Army conducted adequate searches for responsive records, and that the NSA, the CIA, and the Army properly withheld certain information pursuant to various FOIA exemptions. 9/26/2013 Mem. Op., ECF No. [257], at 2.

         Plaintiffs appealed this Court's decision, and the Court of Appeals affirmed. DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015). The Court of Appeals agreed that the Army had conducted an adequate search for responsive records. Id. at 188-92. It also rejected Plaintiffs' argument that summary judgment was not proper because the Army had transferred responsive documents to NARA, finding that the Army had transferred those documents in order “to fulfill the Army's obligations under the Disclosure Act, ” not to evade its FOIA obligations. Id. at 192. The Court of Appeals also found that the CIA had conducted an adequate search for records under FOIA, id. at 195, and had satisfied its burden of showing that it had properly withheld certain information pursuant to FOIA Exemptions 1 and 3, id. at 195-99.

         However, the Court of Appeals remanded the case back to this Court “to address in the first instance DiBacco's and Webster's challenges to redactions in a batch of records that the Army disclosed to them while this appeal was pending.” Id. at 183. At oral argument, Plaintiffs argued that the Army's transfer of its records to NARA deprived Plaintiffs of the benefit of the Army's fee waiver for their FOIA requests. Defs.' Stmt. of Material Facts as to Which There is No Genuine Issue, ECF No. [327] (“Defs.' Stmt.”) at ¶ 10; Pls.' Resp. to Defs.' Stmt. of Material Facts Not in Genuine Dispute, ECF No. [332] (“Pls.' Resp.”) at ¶ 10. The Court of Appeals asked Plaintiffs' counsel to identify any NARA documents the contents of which counsel did not know. Defs.' Stmt. ¶ 13; Pls.' Resp. to Defs.' Stmt. ¶ 13. Plaintiffs' counsel identified documents referenced in paragraph 17 of a declaration from NARA's Chief of Special Access and Freedom of Information Act Branch, Research Services, Martha Wagner Murphy. Id. Defendants represented to the Court of Appeals that arrangements would be made to provide to Plaintiffs a copy of those documents. Defs.' Stmt. ¶ 15; Pls.' Resp. to Defs.' Stmt. ¶ 15. A copy of those documents was eventually provided, but the Court of Appeals noted in its Opinion that some of the documents “were redacted or indicated that pages had been removed, with no accompanying justification for that withholding of information.” DiBacco, 795 F.3d at 194. The Court of Appeals “accordingly remand[ed] to allow the parties to create a record and the district court to decide in the first instance the narrow question of whether those withholdings were permissible under FOIA.” Id. The Court of Appeals expressed that the “remand is limited to issues arising from the Army's release to DiBacco during the appeal of responsive but redacted Army documents that had been held by the National Archives.” Id. at 200.

         There are a total of 2, 863 pages of digitized records discussed in paragraph 17 of Ms. Murphy's declaration. Defs.' Stmt. ¶ 26; Pls.' Resp. to Defs.' Stmt. ¶ 26. Of those 2, 863, Defendants had originally made redactions to 11 pages pursuant to FOIA Exemptions 1 and 3. Defs.' Stmt. ¶¶ 25, 28; Pls.' Resp. to Defs.' Stmt. ¶¶ 25, 28. Those redactions were initially addressed and explained in a 2012 declaration of then-CIA Information Review Officer Martha M. Lutz. Defs.' Stmt. ¶ 27; Pls.' Resp. to Defs.' Stmt. ¶ 27. After the case was remanded by the Court of Appeals, Mary E. Wilson, Acting Information Review Officer at the CIA, conducted a new classification review of these records. Defs.' Stmt. ¶ 29; Pls.' Resp. to Defs.' Stmt. ¶ 29. She concluded that certain redactions could be removed at that time. Defs.' Stmt. ¶ 32; Pls.' Resp. to Defs.' Stmt. ¶ 32. Now only 10 pages contain redactions. Defs.' Stmt. ¶ 33; Pls.' Resp. to Defs.' Stmt. ¶ 33.

         Following the Court of Appeals' remand, on October 21, 2015, the Court ordered the parties to meet and confer and to file a joint status report regarding how they proposed proceeding in this matter. 10/21/2015 Order, ECF No. [277]. The parties did so, and subsequently filed and briefed a new round of cross-motions for summary judgment. Those cross-motions are now fully briefed and ripe for resolution.


         Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, in order to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (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.” Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for categories of material.” Milner v. Dep't of Navy, 131 S.Ct. 1259, 1261-62 (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 (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 (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 (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). With these principles in mind, the Court turns to the merits of the parties' cross-motions for summary judgment.


         The parties' cross-motions for summary judgment cover two main areas of dispute: (A) whether the Army has conducted an adequate search for records and (B) whether the redactions Defendants made to the Army records released to Plaintiffs during the course of the latest appeal were proper under FOIA Exemptions 1 and 3. Defendants are entitled to summary judgment on both issues. The Court will address ...

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