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Sauter v. Department of State

United States District Court, District of Columbia

July 30, 2019

MARK SAUTER, et al, Plaintiffs,
DEPARTMENT OF STATE, et al, Defendants.



         Plaintiffs 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.

         Defendants 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.

         DIA 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.

         USAF 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.

         CIA 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.

         In accordance with the foregoing conclusions, this Court will grant defendants' motion for partial summary judgment.


         Capt. 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.

         The 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.[1]


         Summary 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.

         As 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)).

         Because 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 ...

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