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Hall v. Central Intelligence Agency

United States District Court, District of Columbia

August 2, 2017

ROGER HALL, et al., Plaintiffs,


          Royce C. Lamberth United States District Judge.

         I. Background

         Although this case is not breaking any records at merely thirteen years old, Cf. DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (FOIA litigation lasting more than thirty years), this matter will continue to live on past today's decision.

         Plaintiffs Roger Hall ("Hall"), Studies Solutions Results, Inc. ("SSRI"), and Accuracy in Media ("AIM") filed this action against defendant Central Intelligence Agency ("CIA" or "agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking records concerning prisoners of war and Service-members missing in action from the Vietnam War era. Before the Court is the CIA's renewed motion for summary judgment and plaintiffs' cross-motions for summary judgment, as well as plaintiffs' request for discovery, in camera review, and appointment of a special master. Upon consideration of the motions, the oppositions and responses thereto, the associated replies, the attachments and affidavits filed in support of each party's arguments; and the entire record of this case; the Court grants in-part and denies-in part the parties' motions. The Court explains its reasoning in the analysis below.

         In February 2003, Hall made a FOIA request to the CIA on behalf of himself, SSRI, and AIM, seeking assorted records pertaining to POW/MIAs from the Vietnam War era. Hall Amd. Compl. [45] ¶ 6. Having received no substantive response, Hall and AIM filed this action in May, 2004. The procedural history of this case, leading up to November 12, 2009, is set forth comprehensively in Judge Kennedy's 2009 Order. Hall v. CIA, 668 F.Supp.2d 172, 175-78 (D.D.C.2009). Likewise, the subsequent history up through August 3, 2012 is provided in an Opinion by this Court issued on that date. 881 F.Supp.2d 38, 50 (D.D.C. 2012).

         In its 2012 opinion, this Court ruled that the following issues remained outstanding: 1) the adequacy of the search with respect to Item 5 of plaintiffs' request; 2) the adequacy of the search with respect to Item 7 of the plaintiffs' request; 3) the disposition of referred documents with respect to Item 5; and 4) the agency's application of Exemptions 3 and 6 on the already produced documents.

         This most recent round of litigation was kicked off by the CIA's renewed motion for summary judgment. [248] It is the CIA's position that it has resolved the outstanding issues related to production, and all that remains to be decided by the Court is the adequacy of the searches with respect to Items 5 and 7. See [248] at *3 ¶ 1. Item 5 of Hall's request included all records relating to a) 47 individuals alleged to be Vietnam-era POW/MIAs, whose next-of-kin have provided privacy waivers to Roger Hall, and b) 1, 711 persons on the Prisoner of War/Missing Personnel Office's list of persons whose primary next-of-kin (PNOK) have authorized the release of information concerning them. Item 7 requests "[a] 11 records on or pertaining to any search conducted regarding any other requests for records pertaining to Vietnam War POW/MIAs, including any search for such records conducted in response to any request by any congressional committee or executive branch agency." Specifics as to the status of production for each of these requests will be addressed in the analysis below. So, too, is the plaintiffs' contention that CIA's production and conduct up to now leaves outstanding the other matters specified in the Court's 2012 order (the Item 5 referral documents, and application of Exemptions 3 and 6) and the adequacy of the Vaughn indices produced pursuant to that Order. For now, it will suffice to say that plaintiffs are so underwhelmed with the agency's progress that they are requesting discovery, in camera review of unredacted documents, and/or the appointment of a special master.

         II. Legal Standards

         A. Summary Judgment

         Summary judgment is appropriate where "the movant shows 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. Pro. 56(a). It is "appropriate only in circumstances where 'the evidence is such that a reasonable jury could not return a verdict for the nonmoving party.'" Washington Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986)). The Court must view all evidence "in the light most favorable to the nonmoving party" and, if a genuine dispute exists, "parties should be given the opportunity to present direct evidence and cross-examine the evidence of their opponents in an adversarial setting." Id.

         As applied in a FOIA case, an agency defendant may be entitled to summary judgment if it demonstrates that 1) no material facts are in dispute, 2) it has conducted an adequate search for responsive records, and 3) each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep't of Justice, 872 F.Supp.2d 12, 18 (D.D.C. 2012) (citing Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)).

         B. Adequacy of a Search

         When an agency receives a FOIA request it is obligated to "conduct a search reasonably calculated to uncover all relevant documents, " Truitt v. Dep't of State, 897 F.2d 540, 541 (D.C. Cir. 1990) (internal quotation marks omitted), among those sources of information not otherwise exempted by law. See, e.g., 50 U.S.C. § 3141. The adequacy of a search, therefore, depends not on "whether any further documents might conceivably exist, " id., but on the search's design and scope. An agency must accordingly show that it made "a good faith effort to conduct a search for the requested records, using methods [that] can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).[1] An agency need not, however, "search every record system, " or conduct a perfect search. See id.; SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

         At the summary judgment stage, the agency bears the burden of showing that it complied with FOIA and it may meet this burden "by providing 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.'" Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). The plaintiff may then "provide 'countervailing evidence' as to the adequacy of the agency's search." Id. at 314. If a review of the record created by these affidavits "raises substantial doubt, " as to a search's adequacy, "particularly in view of well defined requests and positive indications of overlooked materials.'" summary judgment would not be appropriate. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding Church of Scientology v. Nat'l. Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

         "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard, 926 F.2d at 1200. They may, however, be rebutted by evidence of bad faith. Id.

         C. Production and Exemptions

         This Court determines de novo whether an agency has properly withheld information under a claimed FOIA exemption. See Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). "The underlying facts are viewed in the light most favorable to the [FOIA] requester, " Weisberg, 705 F.2d at 1350, and the exemptions must be narrowly construed. FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). An agency claiming an exemption to FOIA bears the burden of establishing that the exemption applies. Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979). And FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C.A. § 552(b).

         Especially in national security matters, however, courts generally defer to agency expertise. See, e.g., Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (according "utmost deference" to classification affidavits); Krikorian v. Dep't of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993) (acknowledging "unique insights" of executive agencies responsible for national defense and foreign relations). Because of that deference and the peculiarities of FOIA litigation, agencies regularly submit affidavits setting forth the bases for withholding otherwise responsive information, just as they do to establish the adequacy of their searches, in support of their motions for summary judgment. These submissions usually also include so-called Vaughn indeces. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The agency's submissions "must show, with reasonable specificity, why the documents fall within the exemption." Judicial Watch, Inc. v. U.S. Dep't of Health & Human Servs., 27 F.Supp.2d 240, 242 (D.D.C. 1998). Again, they are presumed to be submitted in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). The D.C. Circuit has explained the importance of these submissions in evaluating FOIA exemption claims:

As, ordinarily, the agency alone possesses knowledge of the precise content of documents withheld, the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected.....Affidavits submitted by a governmental agency in justification for its exemption claims must therefore strive to correct, however, imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation. The detailed public index which in Vaughn we required of withholding agencies is intended to do just that: to permit adequate adversary testing of the agency's claimed right to an exemption, and enable the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render the District Court's decision capable of meaningful review on appeal.

King v. U.S. Dep't of Justice, 830 F.2d 210, 218-19 (D.C. Cir. 1987) (quotations omitted).

         To accomplish that goal, the agency must supply "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Cent., 566 F.2d at 251. The requisite specificity "imposes on the agency the burden of demonstrating applicability of the exemptions invoked as to each document or segment withheld.'" King, 830 F.2d at 224 (emphasis original). Though the affidavits need not contain factual descriptions the public disclosure of which would endanger the agency's mission, Vaughn, 484 F.2d at 826-27, they must feature "the kind of detailed, scrupulous description [of the withheld documents] that enables a District Court judge to perform a de novo review." Church of Scientology of Cal, Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980).

         a. Exemption 1

         Exemption 1 protects matters that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]" 5 U.S.C. § 552(b)(1). Pursuant to Executive Order 13526, 75 Fed.Reg. 707 (Jan. 5, 2010), information may be classified only if all of the following conditions are met:

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one of more [specified categories];[2] and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Exec. Order No. 13526 § 1.1(a). The phrase "damage to the national security" means "harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information." Exec. Order. No. 13526 § 6.1(1). See also Military Audit Project v. Casey, 656 F.2d 724, 748 (D.C. Cir. 1981) (deferring to agency affidavits as to the proper classification of information).

         b. ...

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