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Hillier v. Central Intelligence Agency

United States District Court, District of Columbia

September 12, 2018

WYNSHIP W. HILLIER, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Wynship Hillier invokes the Privacy Act of 1974, 5 U.S.C. § 552a, to identify records about him at the Department of Homeland Security (DHS), United States Department of State, and Central Intelligence Agency (CIA) (collectively the “defendants”). Hillier claims these agencies have records confirming that he is “the target of a sophisticated campaign” designed to render him an “involuntary psychiatric outpatient” and to convince him, and others, that he suffers from “psychiatric disorders.” 2d Am. Compl. ¶ 4, Dkt. 33. Dissatisfied by the agencies' failure to produce any records, Hillier filed this lawsuit. Before the Court are the defendants' Motion for Summary Judgment, Dkt. 40, Hillier's Motion for Partial Summary Judgment Against Defendant United States Department of Homeland Security, Dkt. 41, and Hillier's Cross-motion for Partial Summary Judgment Against the Central Intelligence Agency and United States Department of State, Dkt. 48. For the reasons that follow, the Court will grant in part and deny in part the defendant's motion and deny Hillier's motions.

         I. BACKGROUND

         For the past six years, Wynship Hillier has sought records that he believes DHS, Department of State, and CIA possess. His quest began in early 2012[1] when he sent letters to these agencies asking whether certain record systems contained records about him. See Defs.' Statement of Facts ¶¶ 3, 6, 17, 29, Dkt. 40-1; Pl.'s Statement of Genuine Issues ¶¶ 3, 6, 17, 29, Dkt. 45.[2] Each agency processed Hillier's requests under both the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA), 5 U.S.C. §552. But none of the agencies provided records to Hillier because (1) none were found, (2) the relevant record systems were statutorily exempt from the Privacy Act and FOIA, or (3) the CIA could neither confirm nor deny the existence of records that might reveal a classified relationship with the agency. Defs.' Statement of Facts ¶¶ 3, 6, 19, 29. Hillier exhausted his administrative remedies and commenced this lawsuit on September 12, 2016. See 2d Am. Compl. Exs. 1-54; Defs.' Statement of Facts ¶¶ 9, 31.

         Since then, Hillier has zealously prosecuted his lawsuit. In addition to securing leave to amend his complaint three times, he submitted over 1, 300 pages of argument and evidence. See Dkts. 15-18, 20, 22, 26, 31, 33-35, 38, 39, 41-43, 45, 46, 48, 49, 52-56, 59, 61, 64. 65.

         When the defendants moved for summary judgment on August 24, 2017, see Dkt. 40, Hillier countered on September 7, 2017 with a motion for partial summary judgment against DHS, see Dkt. 41. He also filed an opposition to the defendants' motion for summary judgment, a motion to compel discovery, a motion to participate in hearings by telephone or televideo, see Dkts. 42, 43, 45, and, on October 17, 2017, he filed a cross-motion for partial summary judgment against the CIA and Department of State, see Dkt. 48.

         About a week after this case was reassigned to the undersigned judge on December 5, 2017, Hillier moved for leave to file a surreply to the defendants' motion for summary judgment, see Dkt. 52, which the Court granted. Several weeks later, Hillier filed a 454-page request asking the Court to take judicial notice of facts that he argued were contained in Federal Register notices and proposed rules, Executive Orders and memoranda, federal statistical reports published on agency websites, a telephone directory posted on a government website, a page from a government website, other court records, dictionaries, law review articles, workday calculations, and legislative reports and documents. Pl's. Req. for Judicial Notice at 1, 35, 54, 65, 85, 87, 90, 92, 95, 96, Dkt. 54.

         On February 23, 2018, Hillier moved to amend his motion for partial summary judgment against DHS, cross-motion for partial summary judgment against the CIA and Department of State, motion to compel discovery, and opposition to the defendants' motion for summary judgment. Mot. to Amend at 1, Dkt. 55. In support, Hillier submitted 464 pages of exhibits. Id. Exs. 71-166, Dkt. 55-1. He followed that with a March 19, 2018 motion seeking reconsideration of the May 31, 2017 minute order issued by the judge who was previously assigned to this case. Mot. for Recons. at 1, Dkt. 59. That minute order prohibited Hillier from further amending his complaint “absent a showing of exceedingly good cause.” Minute Order of May 31, 2017.

         The competing motions for summary judgment are addressed in this memorandum opinion. Hillier's other pending motions are addressed in the accompanying order.

         II. LEGAL STANDARDS

         Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact” and, viewing the evidence in the light most favorable to the nonmoving party, “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Paige v. Drug Enf't Admin., 665 F.3d 1355, 1358 (D.C. Cir. 2012). “A dispute is ‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Paige, 665 F.3d at 1358. A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Hillier invokes the Privacy Act to secure notice of records about him. The Privacy Act mandates that “[e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him.” 5 U.S.C. § 552a(d)(1). The Privacy Act also allows individuals to request notice that an agency's system of records contains information about them. See 5 U.S.C. §§ 552a(e)(4)(G), (f)(1).

         The defendants treat Hillier's requests as though he is also seeking records under FOIA. Defs.' Statement of Material Facts ¶¶ 3, 6, 19, 29. FOIA provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).

         The Privacy Act and FOIA are structurally similar. Londrigan v. FBI, 670 F.2d 1164, 1169 (D.C. Cir. 1981). Both provide a requester with access to federal agency records about the requester and create a private cause of action when an agency fails to comply with a valid request.[3] See 5 U.S.C. §§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B) (FOIA).

         Under both the Privacy Act and FOIA, an agency must conduct an adequate and reasonable search for relevant records. See Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (stating that “the Privacy Act, like FOIA, requires” that a search “be reasonably calculated to uncover all relevant documents” (internal quotation marks omitted)). In this Circuit, courts apply the same standard under both statutes to determine the adequacy of a search.[4] See id.; Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam) (affirming search's adequacy under Privacy Act for the same reasons the search was affirmed under FOIA). Thus, “[i]n a suit seeking agency documents-whether under the Privacy Act or the FOIA-at the summary judgment stage, where the agency has the burden to show that it acted in accordance with the statute, the court may rely on 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 (if such records exist) were searched.” Chambers, 568 F.3d at 1003 (internal alteration and quotation marks omitted). The agency's affidavit is “accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).

         If agency searches reveal records responsive to a Privacy Act or FOIA request, an agency may withhold access to the records if the statutes exempt them from disclosure. See 5 U.S.C. §§ 552a(j)(2), (k)(2), 552(b). Although the Privacy Act and FOIA “substantially overlap, ” the statutes “are not completely coextensive; each provides or limits access to material not opened or closed by the other.” Greentree, 674 F.2d at 78. The Privacy Act and FOIA “seek[] in different ways to respond to the potential excesses of government, ” and “[e]ach, therefore, has its own functions and limitations.” Id. at 76. Accordingly, “[t]he two acts explicitly state that access to records under each is available without regard to exemptions under the other.” Id. This means that, when both statutes are at play, an agency seeking to withhold records must “demonstrate that the documents fall within some exemption under each Act.” Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987). “If a FOIA exemption covers the documents, but a Privacy Act exemption does not, the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be released under FOIA.” Id.

         III. ANALYSIS

         The defendants move for summary judgment under Rule 56 on the ground that their searches were adequate but they found no nonexempt records to disclose to Hillier. Defs.' Mot. for Summ. J. at 1. Hillier opposes the defendants' motion and champions his cross-motion for summary judgment, which he contends must prevail because the agencies' declarations (1) contain statements contradicted by the record, (2) call into question the adequacy of the searches, (3) pose evidentiary deficiencies, and (4) fail to address Hillier's allegations of bad faith. See Pl.'s Opp'n Br. at 1 (attached as Ex. 64 to Pl.'s Opp'n to Defs.' Mot.), Dkt. 45. The Court assesses the parties' motions by considering each of Hillier's Privacy Act requests and the agencies' corresponding searches and responses.

         A. Hillier's Privacy Act Request to the CIA

         Hillier began his pursuit of federal agency records by sending a January 6, 2012 Privacy Act request to the CIA. Shiner Decl. Ex. B at 1. Hillier's request stated:

I believe that I may have been identified as a person of intelligence interest by your agency, as I appear to be under surveillance, I appear to be the continual target of a No. of behaviors intended to provoke, threaten, intimidate, distress, and harass me, and I continue to be a target for acts of battery.

Id. Hillier further stated that, “[d]ue to my education and subsequent work in operations research, it is also possible that your agency has record[s] of me as a potential vendor or consultant, and that fact has led to my identification as a person of intelligence interest to this or another agency.” Id. Hiller requested notice of records about him in the following systems: (1) CIA-22, Personnel Security Records; (2) CIA-24, Polygraph Records; (3) CIA-26, Office of General Counsel Records; (4) CIA-32, Office of the Deputy Director of Central Intelligence for Community Management Records; (5) CIA-33, National Intelligence Council Records; (6) CIA- 35, Directorate of Science & Technology Private Sector Contact Information; (7) CIA-37, Directorate of Operation Records; (8) CIA-38, Academic and Business Contact Records; (9) CIA-40, Research System Records; and (10) CIA-41, Intelligence Analysis Records. Hillier identified himself by his full legal name, another name he used from 1990-91, his date and place of birth, his social security number, his citizenship status, and his then-current and previous residential addresses. Shiner Decl. Ex. B at 2.

         1. The CIA's Response

         The CIA's response to Hillier's Privacy Act request is described in Antoinette B. Shiner's declaration. Shiner is a senior CIA official with Top Secret classification authority. Shiner Decl. ¶ 2, Dkt. 40-4. Shiner serves as the Information Review Officer for the CIA's Litigation Information Review Office. Id. ¶ 1. She is also a designated Records Validation Officer, which means she is “authorized to testify or execute affidavits regarding CIA records and records searches for litigation matters involving CIA information.” Id. ¶¶ 3, 5.

         The CIA sent Hillier a March 5, 2012 letter stating that his request would be processed as both a Privacy Act request and a FOIA request.[5] Id. ¶ 7. The CIA first focused on unclassified records that “reveal an open or acknowledged relationship” between Hillier and the CIA. Id. ¶ 11. The CIA therefore confined its initial search to publicly released records about Hillier but found none. Id. ¶ 12.

         “[B]ased on this search, and analysis of the subject matter of the request, ” the CIA determined that the “Directorate of Support (DS) and the Director's Area (DIR) were the directorates most likely to maintain records responsive to the request because they were the most likely to maintain records that reflect an overt relationship between Mr. Hillier and the CIA.” Id. According to Shiner, “[t]here were no additional locations that would reasonably likely . . . maintain the records sought in this case.” Id. The CIA ultimately “identified the specific databases that were reasonably likely to maintain responsive records, ” id., and conducted searches of all offices that manage the systems of records Hillier identified, Id. ¶ 12 n.6.[6] The CIA's searches “us[ed] all variations of [Hillier's] name and biographical identifiers that he provided: ‘W Hillier,' ‘Hillier (with DOB/SSN),' ‘M Rainsong,' and ‘Rainsong (with DOB/SSN),' ‘Wynship West Hillier,' ‘Mabon Clearwater Rainsong,' and ‘Hillier.'” Id. ¶ 13. But the CIA again located no records about Hillier. Id. ¶ 13.

         For classified records, the CIA provided a so-called “Glomar response”[7] that neither confirmed nor denied the existence of records about Hillier pursuant to FOIA exemptions 1 and 3 and Privacy Act exemptions (j)(1) and (k)(1). FOIA exemption 1 protects from disclosure “matters that are . . . 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). As Shiner explained, Executive Order 13256 “is the operative executive order that governs classification, ” Shiner Decl. ¶ 14, and it provides that, “in response to a request for information under the Freedom of Information Act, the Presidential Records Act, the Privacy Act of 1974, or the mandatory review provisions of this order: (a) An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors, ” EO 13256 § 3.6(a). By a delegation of authority under Executive Order 13256, Shiner is authorized to make classification decisions and “determined that the fact of the existence vel non of the requested records is currently and properly classified.” Shiner Decl. ¶ 15.

         Because FOIA exemption 1 requires the CIA to describe the national security damage that could result from revealing whether classified records exist about Hillier, Id. ¶ 23, Shiner explained that confirming the existence or nonexistence of records about Hillier could reveal intelligence sources or methods and intelligence activities, including covert actions, as defined in Executive Order 13256. See Id. ¶¶ 17, 18, 19. Shiner stated that a response to Hillier's Privacy Act request could “jeopardize the clandestine nature of the Agency's intelligence activities or otherwise reveal previously undisclosed information about CIA sources, capabilities, authorities, interests, relationships with domestic or foreign entities, strengths, weaknesses, and/or resources.” Id. ¶ 18.

         Shiner further stated that intelligence gathering is a primary function of the CIA that depends on human sources and targets. Id. ¶ 19. According to Shiner, human sources will furnish information only with confidence that the CIA will protect them from public disclosure. Id. She emphasized that CIA confirmation of a human source may lead targets to retaliate against the source or his family and friends. Id. Disclosure of human sources also “places in jeopardy every individual with whom the individual has had contact.” Id. “Thus, the indiscretion of one source in a chain of intelligence sources can damage an entire spectrum of sources.” Id. For these reasons, Shiner concluded that confirming or denying the existence of records about someone “reasonably could be expected to cause serious damage to U.S. national security by indicating whether or not CIA maintained any human intelligence sources related to an interest in the subject of the request.” Id. And she explained why consistent use of a Glomar response is necessary even when the CIA has no records about a requester:

To be credible and effective, the CIA must use the Glomar response consistently in all cases where the existence or nonexistence of records responsive to a FOIA request is a classified fact, including instances in which the CIA does not possess records responsive to a particular request. If the CIA were to invoke a Glomar response only when it actually possessed responsive records, the Glomar response would be interpreted as an admission that responsive records exist. This practice would reveal the very information that the CIA must protect in the interest of national security.

Id. ¶ 20.

         Shiner asserted that a Glomar response was also proper under FOIA exemption 3, which protects information exempted by statute when the statute (1) requires withholding the information from the public in a manner that leaves no discretion on the issue or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld. Id. ¶¶ 21, 23; see also 5 U.S.C. § 552(b)(3). The National Security Act of 1947, as amended, mandates that the Director of National Intelligence protect intelligence sources and methods from unauthorized disclosure and thereby requires the information to be withheld without discretion. Shiner Decl. ¶ 22; see also 50 U.S.C. § 3024(i)(1). In accordance with that Act and provisions of Executive Order 12333, and under the direction of the Director of National Intelligence, “the CIA is authorized to protect CIA sources and methods from unauthorized disclosure.” Shiner Decl. ¶ 22. As Shiner explained with respect to FOIA exemption 1, the existence or nonexistence of records indicating a classified connection between Hillier and the CIA could reveal information about intelligence sources and methods. Id. ¶ 18, 19. And the National Security Act protects such information from unauthorized disclosure. Id. ¶ 22. Shiner therefore stated that “the fact of the existence or nonexistence of records that would reflect a classified connection to the CIA is exempt from disclosure under FOIA exemption [3] pursuant to the National Security Act.” Id. ¶ 23.

         Shiner also concluded that the existence or nonexistence of records about Hillier was protected from disclosure by Privacy Act exemptions (j)(1) and (k)(1). Id. ¶¶ 24, 25, 26, 27. Exemption (j)(1) authorizes the Director of the CIA to promulgate regulations that exempt systems of records from the Privacy Act's access and amendment provisions. 5 U.S.C. § 552a(d). Shiner Decl. ¶ 24; see also 5 U.S.C. § 552a(j)(1). The Director of the CIA did so in 32 C.F.R. § 1901.62(d)(1), which exempts from the Privacy Act's access provisions parts of CIA systems of records “that consist of, pertain to, or would otherwise reveal intelligence sources and methods.” Shiner Decl. ¶ 24 (citing the regulation). As Shiner explained with respect to FOIA exemptions 1 and 3, the existence or nonexistence of a classified connection between the CIA and Hillier “implicates intelligence sources and methods.” Id. ¶ 24.

         Privacy Act exemption (k)(1) authorizes the Director of the CIA to promulgate rules that exempt agency systems of records from the access provision of the Privacy Act if the system is subject to FOIA exemption 1. Id. ¶ 26 (citing 5 U.S.C. § 552a(k)(1)). As already discussed, FOIA exemption 1 protects from disclosure information that is properly classified under an executive order. 5 U.S.C. § 552(b)(1). Shiner asserted that the existence or nonexistence of a classified connection between the CIA and Hillier “can reasonably be expected to cause serious damage to U.S. national security” so it “is currently and properly classified under Executive Order 13526 and is, therefore, exempt from disclosure under Privacy Act exemption (k)(1).” Shiner Decl. ¶ 26.

         Because the existence or nonexistence of classified responsive records about Hillier “is itself a properly classified fact and . . . is intertwined with intelligence activities, sources, and methods, ” Shiner determined that “this fact is, and must remain, classified and protected by statute.” Id. ¶ 28. Shiner therefore concluded that “the only appropriate response is for the CIA to neither confirm nor deny the existence or ...


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