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Talbot v. U.S. Department of State

United States District Court, District of Columbia

November 16, 2018

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



         Investigative journalist David Talbot is convinced that the Central Intelligence Agency had a hand in the assassination of President Kennedy. Seeking proof, Talbot filed Freedom of Information Act (“FOIA”) requests with the CIA and State Department for the passport and travel records of two deceased CIA agents who Talbot suspects were aware of the agency's involvement. When the agencies' responses disappointed him, Talbot sued to challenge the adequacy of their searches and the legitimacy of their withholdings.

         The parties have already undergone one round of summary judgment. In June, the Court dismissed most of Talbot's complaints but found in his favor on two points: that the State Department's search for one of the agent's records was unreasonably constrained by the use of his actual birthdate, and that the CIA had improperly refused to search its operational files for records. The agencies have since conducted a supplemental search and now renew their motion for summary judgment. Talbot opposes their motion and also seeks reconsideration of the Court's earlier decision rejecting his other arguments. For the reasons that follow, the Court will grant summary judgment to the agencies and deny Talbot's motion for reconsideration.

         I. Background

         David Talbot is a journalist, author, and co-founder of the online newspaper Compl. ¶ 1.[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.

         Both agencies 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, the parties filed motions for summary judgment, with Talbot challenging the agencies' searches and their withholdings. The Court held a hearing on the motions in May 2018.

         The Court issued a split decision, granting in part and denying in part the agencies' motion and denying Talbot's. Talbot v. U.S. Dep't of State, 315 F.Supp.3d 355, 374 (D.D.C. 2018). Although the Court formally denied Talbot's motion without prejudice, it did order both the State Department and the CIA to conduct supplemental searches. Id. State had to take another look for passport records under Harvey's pseudonyms, and the CIA had to canvas an additional location-its operational files-for the requested records. Id.

         The agencies now say they have completed the Court-ordered searches and have given Talbot all responsive documents. They therefore renew their motion for summary judgment. Talbot not only opposes defendants' renewed motion, but also asks the Court to revisit portions of its earlier summary judgment decision.

         II. Legal Standards

         A. Reconsideration

         When a court issues an “order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, ” such order or decision “may be revised at any time before” the case has been fully and finally resolved. Fed R. Civ. P. 54(b). While the “actual language of Rule 54(b) sets forth little guidance as to when such review is appropriate, ” “courts in this district have held that ‘relief upon reconsideration pursuant to Rule 54(b) is available ‘as justice requires.'” DL v. District of Columbia, 274 F.R.D. 320, 324 (D.D.C. 2011) (quoting Hoffman v. District of Columbia, 681 F.Supp.2d 86, 90 (D.D.C. 2010)). “[A]sking ‘what justice requires' amounts to determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances.” Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C. 2005). Revision may be necessary “when the Court has ‘patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.” Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)) (alteration in original).

         B. Summary Judgment

         FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriately granted if “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.P. 56(a).

         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). When a FOIA requester challenges the adequacy of the agency's search, the agency must show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) (quotation omitted). In reviewing an agency's search, courts apply a “reasonableness” test that looks to the methods and not the fruits of a search. Rodriguez, 236 F.Supp.3d at 34. An 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). To make this showing, the agency may rely on affidavits that detail “what records were searched, by whom, and through what process.” 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” and “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) (quotation omitted).

         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). An agency may justify its withholdings through sufficiently detailed affidavits. See, e.g., id. But because the primary purpose of FOIA is disclosure, courts construe exemptions narrowly. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

         III. ...

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