United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
Standard of Review
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).
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).
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).
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
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. §
challenges nearly every aspect of the State Department's
and the CIA's response to his FOIA
requests. 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.
The State Department's Search and Withholdings
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
Adequacy of the State Department's search
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.
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.
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.
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.
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 ...