United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
bring this action under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, arguing that they
are entitled to records pertaining to Captain Harry Moore
("Capt. Moore"), a downed Korean War pilot and
possible prisoner of war, from six government entities-the
Department of State ("State"), Department of
Defense ("DOD"), Central Intelligence Agency
("CIA"), National Security Agency
("NSA"), Defense Intelligence Agency
("DIA"), and United States Air Force
("USAF") (collectively "defendants").
After receiving no substantive response to their initial FOIA
requests, plaintiffs brought this action against defendants.
In their amended complaint, plaintiffs allege that they are
legally entitled to documents that these government entities
have improperly withheld.
moved for summary judgment with respect to plaintiffs'
FOIA requests to State, CIA, DIA, and USAF. In support of
their motion, defendants provide affidavits detailing each
agency's efforts to fulfill plaintiffs' FOIA
requests. In their opposition brief, plaintiffs concede that
State's searches were adequate. Additionally, plaintiffs
concede the appropriateness of the Glomar response made in
reliance upon FOIA Exemptions 1 and 3, along with redactions
made in reliance upon FOIA Exemption 6. As such, this Court
need only consider the adequacy of the searches conducted by
DIA, CIA, and USAF.
conducted an adequate FOIA search. DIA personnel with
knowledge of the agency's recordkeeping system reviewed
plaintiffs' request and concluded that there is no
reasonable likelihood that DIA would possess responsive
records. Instead, agency personnel determined that these
records would be under the control of the Department of
Defense POW/MIA Accounting Agency ("DPAA"), which
is tasked with accounting for DOD personnel from the Korean
War. An agency need only conduct a reasonable search for
responsive records, a standard that the agency can meet even
without an actual records search. DIA has met this standard.
conducted an adequate FOIA search. Personnel familiar with
USAF's recordkeeping systems originally searched five
separate subdivisions that might have contained records
responsive to plaintiffs' request. In total, these
searches located 18 pages of responsive records and a
responsive email exchange. Plaintiffs challenged the adequacy
of the searches of two locations in their opposition brief.
This Court need not address the adequacy of those initial
searches because defendants cite evidence in their reply
brief showing that USAF ran new searches that corrected the
alleged defects in the initial searches. Additionally, USAF
searched two new locations that plaintiffs mentioned in their
opposition brief and released an additional 23, 498 pages of
responsive records to plaintiffs. USAF's remedial
measures satisfy the FOIA standard.
conducted an adequate FOIA search. CIA personnel with
knowledge of the agency's recordkeeping system reviewed
plaintiffs' request and provided affidavits detailing the
exact locations searched and search terms utilized. CIA's
search located no responsive records. This Court finds no
deficiencies in these searches, and plaintiffs' argument
that something must be wrong with CIA's search because it
did not locate records that plaintiffs claim it should have
is unconvincing. As such, defendants' affidavits
establish that CIA has met the FOIA standard.
accordance with the foregoing conclusions, this Court will
grant defendants' motion for partial summary judgment.
Moore was an F-51 aircraft pilot who was dispatched to
perform a reconnaissance mission over North Korea on June 1,
1951. First Am. Compl. ¶ 13, ECF No. 12. During the
mission, Capt. Moore and other members of his team were
ordered to provide air support for a nearby bomber crew.
Id. In the action that followed, Capt. Moore's
plane was shot down and he was subsequently listed as Missing
in Action. Id. Capt. Moore was designated as
presumed dead on December 31, 1953. Id.
U.S.-Russia Joint Commission on POW/MIAs produced information
which introduced the possibility that Capt. Moore survived
his mission and was possibly taken as a prisoner of war.
Id. ¶ 14. In 2002, DOD notified Capt.
Moore's family of this discovery. Id. ¶ 16.
In 2012, DOD notified Capt. Moore's family that Korean
War research was continuing at the Russian archives.
Id. ¶ 17. Capt. Moore's family has received
no further information from DOD. Id In July or
August 2017, plaintiffs sent each defendant FOIA requests
seeking records regarding nine different categories of
information, ranging from Capt. Moore's original shoot
down to more recent investigations and correspondence.
Id. ¶24. Lois Moore, Capt. Moore's widow,
Robert Moore, his brother, Jana Orear, his daughter, and
Christianne O'Malley, his granddaughter, submitted the
FOIA requests. Id. The James Madison Project, a
government accountability organization, and Mark Sauter, an
investigative reporter, joined them. Id. After
receiving no substantive responses from any of the six
agencies, plaintiffs commenced this action on August 9, 2017.
Compl., ECF No. I.
judgment is appropriate where "the movant shows that
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). It is "appropriate only in
circumstances where 'the evidence is such that a
reasonable jury could not return a verdict for the nonmoving
party.'" Washington Post Co. v. U.S. Dep 't
of Health & Human Servs., 865 F.2d 320, 325 (D.C.
Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The court must view all evidence
"in the light most favorable to the nonmoving
party" and, if a genuine dispute exists, "parties
should be given the opportunity to present direct evidence
and cross-examine the evidence of their opponents in an
adversarial setting." Id.
applied in a FOIA case, an agency defendant may be entitled
to summary judgment if it demonstrates that 1) no material
facts are in dispute, 2) it has conducted an adequate search
for responsive records, and 3) each responsive record that it
has located has either been produced to the plaintiff or is
exempt from disclosure. Miller v. U.S. Dep't of
Justice, 872 F.Supp.2d 12, 18 (D.D.C. 2012) (citing
Weisberg v. U.S. Dep't of Justice, 627 F.2d 365,
368 (D.C. Cir. 1980)). Agencies can meet their burden on FOIA
matters through a "reasonably detailed affidavit,"
Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990), which is to be "accorded a presumption
of good faith." See Mobley v. CIA., 806 F.3d
568, 580-81 (D.C. Cir. 2015) (quoting SafeCardServs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
plaintiffs conceded the adequacy of the searches conducted by
State, this Court will consider only the searches conducted
by DIA, USAF, and CIA. Mem. Opp'n Defs.' Partial Mot.
Summ. J. 1, ECF No. 34. Additionally, this Court will not
discuss the appropriateness of defendants' reliance on