United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
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
consideration of the pleadings,  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'
 Renewed Motion for Summary Judgment and DENIES
Plaintiffs'  Renewed Motion for Partial Summary
Judgment and Other Relief.
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). 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
(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
(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.
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.
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. . 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.
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
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. , 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. , 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.
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.”12/11/00 Status Report, ECF
No. , 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.
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.  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.
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. ; 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.
. Once the Plaintiffs' motion was fully briefed, the
case was randomly reassigned to the undersigned. 5/30/12
Reassignment of Civil Case, ECF No. . 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.
parties then filed and briefed new cross motions for summary
judgment. On September 26, 2013, the Court granted
Defendants'  Renewed Motion for Summary Judgment and
denied Plaintiffs'  Cross-Motion for Summary
Judgment. 9/26/2013 Order, ECF No. . 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. , at 2.
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.
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.
 (“Defs.' Stmt.”) at ¶ 10;
Pls.' Resp. to Defs.' Stmt. of Material Facts Not in
Genuine Dispute, ECF No.  (“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
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.
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. . 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.
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).
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.
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 ...