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Talbot v. U.S. Department of State

United States District Court, District of Columbia

June 7, 2018

DAVID TALBOT, Plaintiff,
v.
U.S. DEPARTMENT OF STATE et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         Over a half-century after President Kennedy's assassination, theories still abound as to who was responsible. Investigative journalist David Talbot points the finger at the Central Intelligence Agency (“CIA”). In a quest for supporting evidence, Talbot filed Freedom of Information Act (“FOIA”) requests with the CIA and the State Department for passport and travel records of two deceased CIA agents who Talbot suspects were aware of the agency's involvement in the assassination, or worse. Talbot apparently seeks the records in order to link the agents' comings and goings to the known whereabouts of other characters in the continuing whodunit.

         In this suit, Talbot challenges the adequacy of the agencies' searches in response to his requests and the appropriateness of their reliance on a number of FOIA exemptions to withhold otherwise responsive records. Both sides now seek summary judgment. For the reasons explained further below, the Court will grant summary judgment to the agencies with two exceptions: it concludes that (1) the State Department's search for passports issued to one of the agents under two pseudonyms was unduly restrictive and (2) certain potentially responsive records in operational files that the CIA claimed were exempt from disclosure fall under an exception to that exemption and, consequently, the CIA must either search the files for those records or explain why no responsive records are likely to be found there.

         I. Background

         David Talbot is a journalist, author, and co-founder of the online newspaper Salon.com. Compl. ¶ 1. He has written multiple books covering the historical period of the presidency of John F. Kennedy, including the Kennedy assassination. Id. ¶¶ 1-3. In May 2013, in connection with research for a now-published book on former CIA Director Allen Dulles, Talbot submitted FOIA requests to the Department of State and the CIA. The request to the State Department sought “[a]ll passport and visa records pertaining to” two former CIA agents, William King Harvey and F. Mark Wyatt, from January 1, 1950 through July 1, 1976, as well as copies of all photographs of the two men. Id. Ex. 1. The request to the CIA also sought records related to Wyatt and Harvey, specifically “[a]ll records pertaining to temporary duty (TDY) travel, ” “[a]ll passport and visa records, ” “[a]ll records reflecting assignment to a[] station, post, base, unit or other component of the CIA, ” and “[a]ll photographs pertaining to” the two from January 1, 1950 to July 1, 1976 for Harvey and from January 1, 1948 to 1975 for Wyatt. Id. Ex. 6.

         State and the CIA informed Talbot they had received his requests and began processing them. Id. ¶¶ 11, 20. When the agencies failed to fully process Talbot's requests, he brought suit against them in this Court. After production was completed, both parties filed motions for summary judgment, with Talbot challenging the agencies' searches and their withholdings. The Court held a hearing on the motions on May 15, 2018.

         II. Standard of Review

         Summary judgment may be granted when the moving party establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment is the typical mechanism to determine whether an agency has met its FOIA obligations. See, e.g., Judicial Watch, Inc. v. CFPB, 60 F.Supp.3d 1, 6 (D.D.C. 2014).

         Under FOIA, an agency is first required to make an adequate search for any responsive records. Rodriguez v. U.S. Dep't of Def., 236 F.Supp.3d 26, 34 (D.D.C. 2017). In reviewing an agency's search, courts apply a “reasonableness” test that looks to the methods and not the fruits of a search. Id. To prove its search was reasonable, the agency “must show that it made a good faith effort to conduct a search for the requested records, using methods which 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). The agency may rely on affidavits that detail “what records were searched, by whom, and through what process” to make this showing. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Agency affidavits are “accorded a presumption of good faith.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

         In addition to demonstrating that it conducted an adequate search, the agency must also justify any withholdings it has made pursuant to a FOIA exemption. See, e.g., Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). Justification can be provided by sufficiently detailed agency affidavits. See, e.g., id. Because the primary purpose of FOIA is disclosure, exemptions are construed narrowly. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

         The agencies here have invoked three separate FOIA exemptions. First, the CIA has withheld some documents under Exemption 1, which protects from disclosure documents “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and that “are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Second, the CIA has withheld documents under Exemption 3, which covers certain records “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). To demonstrate that records fall within Exemption 3, the agency must show that “the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute.” Larson, 565 F.3d at 865.

         Finally, both the State Department and the CIA have redacted certain names and personal information under Exemption 6, which covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Courts follow a two-part test in applying Exemption 6. See, e.g., Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1228 (D.C. Cir. 2008). First, the Court determines whether the information constitutes “personnel, medical, or ‘similar' files covered by Exemption 6.” Id. Then, the Court determines whether disclosure would “‘constitute a clearly unwarranted invasion of personal privacy'” by “balanc[ing] the privacy interest that would be compromised by disclosure against any public interest in the requested information.” Id. (quoting 5 U.S.C. § 552(b)(6)).

         III. Analysis

         Talbot challenges nearly every aspect of the State Department's and the CIA's response to his FOIA requests.[1] He first contends that neither agency performed an adequate search for records. He next argues that both agencies' withholdings were improper. Finally, he argues that the agencies have not met their obligations to segregate non-exempt material from the withheld records. The Court will begin in Foggy Bottom before traveling to Langley.

         A. The State Department's Search and Withholdings

         Talbot challenges the State Department's search and production on several grounds: that (1) the Department's search for records responsive to his May 2013 request was inadequate, (2) its withholdings were improper, and (3) it failed to respond to a separate April 2016 request he submitted. While the Court will grant the Department summary judgment as to its withholdings, the April 2016 request, and its search for Agent Wyatt's records, it will deny both motions without prejudice as to the adequacy of the Department's search for passport records associated with Agent Harvey's two pseudonyms.

         1. Adequacy of the State Department's search

         The State Department's search for passport records for both Harvey and Wyatt is described in declarations submitted by Eric F. Stein, the Director of the Department's Office of Information Programs and Services. According to Mr. Stein, the Department determined that any responsive records were likely to be found in the Department's Office of Passport Services because that office handles the issuance of passports to U.S. citizens. Decl. of Eric F. Stein ¶¶ 14-15. Department personnel conducted a search of several electronic databases that typically contain records for more recent passports, but also include some imaged records for older passports. Id. ¶¶ 16-17, 20. These personnel searched for records listing Harvey's name and birthdate, Wyatt's name and birthdate, or two pseudonyms used by Harvey that Talbot provided and Harvey's actual birthdate. Id. ¶¶ 16-17, 20. Additionally, Department personnel searched the agency's archived hard copy passport files, again for passport records with Harvey's name and birthdate, Wyatt's name and birthdate, or Harvey's two pseudonyms and actual birthdate. Id. ¶¶ 18, 21. The Department found ten documents pertaining to Wyatt but none to Harvey. Id. ¶¶ 19, 22.

         Talbot advances several arguments as to why this search was inadequate, all but one of which are unavailing. First, Talbot faults the Department for searching using only Harvey's and Wyatt's first and last names rather than their full names including their middle names. Mem. P. & A. Opp'n Defs.' Mot. Summ. J. & Supp. Pl.'s Mot. Summ. J. (“Pl.'s Cross-MSJ”) at 12-13, 16. But Mr. Stein clarifies in a supplemental declaration that any results from the search using first and last names would necessarily include results associated with their full names. Suppl. Decl. of Eric F. Stein ¶¶ 5, 8.

         Next, Talbot contends that the Department should have searched for records related to two specific passports, which other records produced by the Department indicated were used by Wyatt. Pl.'s Cross-MSJ at 18. In his supplemental declaration, however, Mr. Stein attests that the Department ran an additional search for any responsive records related to those two passports and found none. Suppl. Decl. of Eric F. Stein ¶¶ 10-12.

         Third, Talbot contends that the search excluded theoretical locations where records could have been found. He speculates, for instance, that there must be some sort of “records system relating to passport services provided to CIA officers” that the Department neglected to search. Pl.'s Cross-MSJ at 14. Similarly, Talbot argues that the Department also needed to search “employment and personnel records relating to employees who receive ‘special passports.'” Id. at 17. But as the Department notes, Talbot's request was for passport and visa records pertaining to Wyatt and Harvey, not for any records or even for any employment or personnel records. See Compl. Ex. 1. The Department does not typically create or maintain records on visas that Americans receive from foreign countries-those are housed with the foreign country authorizing the visa. Decl. of Eric F. Stein ¶ 14 n.1. As to passport records, the Department has explained why the locations searched-the electronic and paper records of the office responsible for processing and issuing passports to U.S. citizens-were the logical places to find any responsive records. Id. ¶¶ 14-15.

         Talbot also contends that the search for Harvey's passport records was inadequate because the Department failed to find any responsive records-a result he argues “beggars belief” because Harvey “was a CIA officer serving in overseas posts in the 1950s and 1960s” and it is “well documented that he travelled extensively during that time.” Pl.'s Cross-MSJ at 14. But it is well-settled that the adequacy of a search “is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Records, especially ones that are several decades old, “may have been accidentally lost or destroyed, or a reasonable and ...


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