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Smith v. Central Intelligence Agency

United States District Court, District of Columbia

March 31, 2017

GRANT F. SMITH, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         Plaintiff Grant F. Smith, proceeding pro se, seeks records related to alleged uranium diversion from the Nuclear Materials and Equipment Corporation (“NUMEC”) to Israel. He challenges the CIA's response to his Freedom of Information Act (“FOIA”) request. The CIA moved for summary judgment, and Smith then moved to amend his Complaint to add the Department of Justice as a Defendant. For the reasons set forth below, Defendant's motion for summary judgment will be GRANTED and Plaintiff's motion to amend the Complaint will be DENIED.

         I. BACKGROUND

         Plaintiff is a public interest researcher and founder of the Institute for Research: Middle Eastern Policy, Inc. (Compl. ¶ 4). On May 13, 2010, he submitted a FOIA request to the CIA for “declassification and release of all cross referenced CIA files related to uranium diversion from the Nuclear Materials and Equipment Corporation (NUMEC) to Israel.” (Id. ¶ 16; Ex. 6). The CIA confirmed receipt of Plaintiff's request on September 10, 2010, informing him that the CIA Information Act (“the Act”), 50 U.S.C. § 431, exempts CIA operational files from search, review, publication, and disclosure requirements of FOIA. (Compl. ¶ 17; Ex. 7). The CIA issued a final response on August 28, 2013, informing Plaintiff that it had located responsive material but was withholding it in full pursuant to FOIA exemptions 1 and 3. (Compl. ¶ 18; Ex. 8). The CIA released to Plaintiff four documents, totaling eleven pages, that were part of database of previously released information and that it believed were responsive to Plaintiff's request. (Ex. 8). Plaintiff filed an administrative appeal of the CIA's withholding, which the CIA's Agency Release Panel denied on March 28, 2014. (Compl. ¶ 20; Wilson Decl. ¶ 21). Plaintiff then filed suit in this court. Several months later, after the Interagency Security Classification Appeals Panel (“ISCAP”) overturned a number of CIA classification determinations, the CIA conducted a supplemental classification review and search, and-after consulting with the FBI, State Department, and Department of Energy-released sixteen redacted documents, and withheld one document, on the basis of FOIA exemptions 1, 3, 6, 7(C), and 7(E). (Wilson Decl. ¶ 28-29; Hardy Decl. ¶ 4; Hackett Decl. ¶ 14; Stein Decl. ¶ 8).

         II. LEGAL STANDARD

         Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (citation omitted). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The burden is on the government agency to show that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). In cases involving the applicability of exemptions and the adequacy of an agency's search, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001). In ACLU, the D.C. Circuit wrote:

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.

ACLU, 628 F.3d at 619. “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)) (internal quotation marks omitted). However, a motion for summary judgment should be granted in favor of the FOIA requester where “an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep't of Justice, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (internal quotation marks omitted) (quoting Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).

         III. ANALYSIS

         A. Summary Judgment

         i. Adequacy of CIA's search

         The court finds that the CIA conducted an adequate search. It determined that the Directorate of Intelligence (“DI”), Directorate of the CIA (“DIR”) Area, and National Clandestine Service (“NCS”) were reasonably likely to possess records responsive to Plaintiff's request.[1] (Wilson Decl. ¶ 23). Each division conducted a search of its record system. The DI used search terms including “NUMEC, ” “Nuclear Materials and Equipment Corporation, ” “Israel, ” and “uranium diversion” to search three electronic databases: (1) a database of “documents which have been scanned into various case types (FOIA, Privacy Act, Executive Order Mandatory Declassification Review, etc.), ” which includes “all documents types, from disseminated intelligence to analysis, to Director-level correspondence;” (2) a web-based research, analysis, and collaboration database containing published DI work and NCS intelligence cables; and (3) a database of automated inventory of records retired to the Agency Archives and Records Center. (Id. ¶ 24). The DIR Area conducted a search using similar search terms of two electronic databases: one that “serves as the official action tracking system for the Director of the Central Intelligence Agency, ” and is used to “record and disseminate all external taskings [sic] received by the agency, ” as well a database of its records sent to the Agency Archives and Records Center. (Id. ¶ 25). The NCS conducted a search using similar terms in the database that contains “documents which have been scanned into various case types.” (Id. ¶ 26). NCS determined that any other responsive records would be located in operational files, and it did not search those files. The searches resulted in a total of twenty-one documents, which the CIA reviewed, releasing four and withholding seventeen. (Id. ¶ 27).

         Plaintiff challenges the adequacy of the CIA's search based on its decision not to search its operational files.[2] The CIA Information Act, 50 U.S.C. § 3141, exempts certain CIA operational files from FOIA's search and disclosure requirements. 50 U.S.C. § 3141(a). The Act's definitions of “operational files” includes “files of the National Clandestine Service which document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services.” Id. § 3141(b). If a requester challenges the CIA's invocation of the Act and decision not to search operational files, the CIA can meet its burden under FOIA “by demonstrating to the court by sworn written submission that exempted operational files likely to contain responsive records currently perform the functions set forth” in subsection (b). Id. § 3141(f)(4)(A).

         The CIA's declaration states that the operational files likely to contain records responsive to Plaintiff's request involve functions including “documenting the conduct of foreign intelligence operations.” (Wilson Decl. ¶ 35). The agency's decision not to search those files is therefore clearly within the CIA Information Act's exemption of operational files as defined in the Act. However, the Act does not apply in three circumstances: (1) when a requester seeks information on themselves pursuant to FOIA or the Privacy Act, (2) when a requester seeks information concerning “any special activity the existence of which is not exempt from disclosure under” FOIA, and (3) when a requester seeks information concerning “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice (“DOJ”), the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.” 50 U.S.C. § 3141(c).

         The DC Circuit has held that in order to meet the third exception, “three questions must be answered in the affirmative.” Morley v. C.I.A., 508 F.3d 1108, 1116 (D.C. Cir. 2007). First, whether the statute covers the investigating entity; second, whether the information requested is “the specific subject matter of [the] investigation, ” and third, whether the investigation concerns “impropriety” or “misconduct” by intelligence agencies. Id. at 1116-18. The First Circuit has further held that “a congressional investigation that touches on CIA conduct in a particular incident or region, standing alone, is not sufficient to warrant the release of all CIA documents anent that incident or region;” rather, “the congressional investigation and the documents sought must specifically relate to CIA wrongdoing.” Sullivan v. C.I.A., 992 F.2d 1249, 1254-55 (1st Cir. 1993). Plaintiff contends ...


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