United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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
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).
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
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).