United States District Court, District of Columbia
WYNSHIP W. HILLIER, Plaintiff,
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
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.
past six years, Wynship Hillier has sought records that he
believes DHS, Department of State, and CIA possess. His quest
began in early 2012 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. 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.
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.
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.
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.
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.
competing motions for summary judgment are addressed in this
memorandum opinion. Hillier's other pending motions are
addressed in the accompanying order.
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).
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).
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.
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. See 5 U.S.C.
§§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C.
§§ 552(a)(3)(A), (a)(4)(B) (FOIA).
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. 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)).
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.
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.
Hillier's Privacy Act Request to the CIA
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.
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. ¶¶
sent Hillier a March 5, 2012 letter stating that his request
would be processed as both a Privacy Act request and a FOIA
request. 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.
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. 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.
classified records, the CIA provided a so-called
“Glomar response” 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.
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.
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
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.
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  pursuant to
the National Security Act.” Id. ¶ 23.
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.
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.
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