United States District Court, District of Columbia
C. Lamberth United States District Judge.
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
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.
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.  ¶ 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).
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.
most recent round of litigation was kicked off by the
CIA's renewed motion for summary judgment.  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  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
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.
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)).
Adequacy of a Search
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). 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).
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)).
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.
Production and Exemptions
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).
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).
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).
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
(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
(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).