UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
ASSASSINATION
ARCHIVES AND RESEARCH CENTER, INC. Planintiff, v. CENTRAL INTELLIGENCE AGENCY,
Defendant
Case No. 1:17-cv-00160 (TNM)
Filed 07/17/18
MEMORANDUM
OPINION
The Assassination Archives and Research Center
challenges the Central Intelligence Agency’s response to its Freedom of
Information Act (FOIA) request for all records related to the CIA’s research
into assassination attempts against Adolf Hitler, plus any records related to
the resulting search itself. After a search effort, the CIA found only one
non-search-related document, and concluded that any other pertinent documents
had likely been given to the National Archives. I conclude that the CIA has met
its burden of showing that the search was adequate and that its redactions were
proper under FOIA. Accordingly, the CIA’s Motion for Summary Judgment will be
granted and Assassination Archives’ Motion for Summary Judgment will be denied.
I.
BACKGROUND
Invoking FOIA
and the President John F. Kennedy Assassination Records Collection Act of 1992
(JFK Records Act), 44 U.S.C. § 2107 note (1992), Assassination Archives seeks
records pertaining to the CIA’s research into plots to assassinate Adolf Hitler.
Compl. ¶ 16. As part of its original FOIA request, the Assassination Archives
attached a 1963 memorandum summarizing a Joint Chiefs of Staff briefing, which
mentioned that “the plot to kill Hitler” was Case 1:17-cv-00160-TNM Document 28
Filed 07/17/18 Page 1 of 13 2 “being studied in detail,” as a historical
parallel to the CIA’s then-ongoing efforts to overthrow Fidel Castro. ECF 1-1
at 7. The first request, sent in August 2012, asked for: (1) “all records on or
pertaining to the CIA’s 1963 study of plots to assassinate Adolf Hitler,” and
(2) “all records on or pertaining to communications by Allen Dulles regarding
plots to assassinate Adol[f] Hitler” during Dulles’s relevant periods of
service in the Office of Strategic Services (a precursor to the CIA), or the
CIA itself. Compl. Ex. 1, ECF No. 1-1. After the CIA said that no responsive
records could be found, Assassination Archives sent an amended request in
October 2012. Compl. ¶ 16.
That
request sought:
(1) All records on or pertaining to any plot to
assassinate Adolf Hitler, including, but not limited to, all records in any way
reflecting or referencing the CIA’s study in 1963 of plots to assassinate
Hitler. . . .
(2) All records on or pertaining to communications
by or with Allen Dulles regarding plots to assassinate Adol[f] Hitler during
Dulles’s service in the Office of Policy Coordination (OPC), the Office of
Strategic Services (OSS), and the Central Intelligence Agency (CIA).
(3) All index entries or other records reflecting
the search for records responsive to this request in its original or amended
form, including search times used with each of the components searched.
Compl. Ex. 2. Assassination Archives again told the
CIA, on June 5, 2015, that a search had revealed no responsive records. Compl.
¶ 18. But in November 2015, Assassination Archives received a third response
from the CIA stating that the letter was “sent . . . in error” and that the
FOIA request was still under review. Id.
After consulting with historical staff about where
potentially responsive records might be found, the CIA’s search eventually led
to one responsive record: a 69-page Propagandist’s Guide to Communist
Dissensions from 1964 (Propagandist’s Guide). Pl.’s Mem. In Support of Pl.’s
Mot. Summ. J. (Pl.’s Mot. Summ. J.) 8. The CIA produced a redacted version of
the Case 1:17-cv-00160-TNM Document 28 Filed 07/17/18 Page 2 of 13 3
Propogandist’s Guide, and redacted versions of five internal communications
related to the FOIA searchvitself. Id.
Both parties now seeks summary judgment, urging
opposite conclusions as to the adequacy of the CIA’s search, and the legality
of its redactions.
II.
LEGAL STANDARDS
To prevail on a motion for summary judgment, a
movant must show 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);
see also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). FOIA requires
federal agencies to “disclose information to the public upon reasonable request
unless the records at issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008). Thus, a
FOIA defendant is entitled to summary judgment if it shows that there is no
genuine dispute about whether “each document that falls within the class
requested either has been produced, is unidentifiable or is wholly exempt from
the Act’s inspection requirements.” See Weisberg v. Dep’t of Justice, 627 F.2d
365, 368 (D.C. Cir. 1980). Courts decide the “vast majority” of FOIA cases on
motions for summary judgment. See Brayton v. Office of United States Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
To show that any unproduced documents are
unidentifiable, a defendant must show “a good faith effort to [] search for the
requested records, using methods which can be reasonably expected to produce
the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). In other words, the defendant must “demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant
documents.” Nation Magazine v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir.
1995). The touchstone of the analysis is the reasonableness of the search, not
the records produced. Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015). An
agency may exercise discretion in crafting its search to meet this standard,
and Case 1:17-cv-00160-TNM Document 28 Filed 07/17/18 Page 3 of 13 4 does not
have to search every system if additional searches are unlikely to produce any
marginal return. See Campbell v. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir.
1998).
Searching for records requires “both systemic and case-specific
exercises of discretion and administrative judgment and expertise,” and is
“hardly an area in which the courts should attempt to micromanage the executive
branch.” Schrecker v. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). To
prove the reasonableness of its search, an agency can submit 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.” Oglesby, 920 F.2d at 68. Agency
declarations enjoy “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, (D.C. Cir. 1991).
To show that any unproduced documents are exempt
from FOIA, an agency may file “affidavits describing the material withheld and
the manner in which it falls within the exemption claimed.” King v. Dep’t of
Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Courts review the applicability of
FOIA exemptions de novo but give “substantial weight to detailed agency
explanations” of national security concerns related to FOIA disclosures. Id.
III.
ANALYSIS
The
CIA Conducted an Adequate and Reasonable Search
The CIA relies on declarations by Antoinette B.
Shiner to establish the adequacy of its search. See Third Supp. Decl. of
Antoinette B. Shiner at 2-4, ECF No. 25-1 (3d Supp. Shiner Decl.); Second Supp.
Decl. of Antoinette B. Shiner (2d Supp. Shiner Decl.), ECF No. 19-2. Ms. Shiner
describes the CIA’s exhaustive search in this manner:
[I]nformation management professionals (“IMS”)
conducted searches of the Directorate of Analysis (“DA“); Directorate of 5
Operations (“DO“), including its operational files; the Office of the Director,
the Director's Action Center, the Office of the General Counsel, the Office of
Congressional Affairs, the Center for the Study of Intelligence (which is part
of the CIA's Talent Center) and the CIA’s history staff office. These
directorates and offices were selected on the basis that they would potentially
contain the historical studies and the documentary materials sought by
Plaintiffs. For each of these offices, IMS personnel identified the specific
database and files that would potentially contain the types of records
responsive to Plaintiffs’ request—i.e., the searches included all relevant
office databases, Agency share drives, and archival records-for memoranda,
correspondence and any other records responsive to the request at issue.
Keyword searches . . . were targeted to retrieve records from each database and
set of files that contained those terms. In cases where records provided
references to additional responsive documents, IMS professionals followed up on
those leads and conducted additional searches based on those terms or
references. No other offices were deemed likely to maintain responsive
documents.
. . . Moreover, Agency personnel consulted with the
CIA’s history staff, who are very knowledgeable about the Agency’s holdings
with respect to the request’s subject matter. In fact, the Agency’s Chief Historian
was personally consulted. He advised on Agency-wide searches and personally
conducted searches of history staff files for any reference to studies of
anti-Hitler plots dating from the 1963 time frame, as referenced very briefly
in the “JCS Memo” or “Higgins Memorandum,” attached to Plaintiffs’ complaint
and opposition. The Chief Historian did not locate any additional responsive
records (apart from the one document that had already been released to
Plaintiffs) and opined that, due to the age of the subject matter and narrow
scope of Plaintiffs’ request focusing on anti-Hitler plots, there would not be
many responsive documents and anything related to assassination studies would
likely be found at the National Archives. Indeed, IMS professionals noted that
these types of records have likely been accessioned to the National Archives
and Records Administration.
3d Supp. Shiner Decl. at 2-4.
Assassination Archives argues that the CIA did not
conduct an adequate search because the CIA should have found records that are
connected to “known operations, events and activities.” AARC’s Cross-Mot. 18.
Since no records of a Hitler study have been found, Assassination Archives
contends that the CIA’s search efforts must have been inadequate. But “the
adequacy of a FOIA search is generally determined not by the fruits of the
search, but by the appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). And mere speculation that efforts are insufficient—without any
meaningful indication of what else the CIA should have done1—fails to rebut the
presumption of good faith accorded to agency declarations. SafeCard Servs.
Inc., 926 F.2d at 1201. This is especially so when the documents sought are
likely quite old and the CIA’s Chief Historian indicates they would have been
handed over to the National Archives. 3d Supp. Shiner Decl. at 4. This
explanation is entirely plausible on its face.
Next,
Assassination Archives alleges that the CIA’s no-records letters qualify as
“troubling questions as to the conduct of the search.” Pl.’s Mot. Summ. J.
19-20. But the CIA admitted that the two letters were sent by administrative
error, CIA Reply 12, and the Plaintiff argues that the errors raise “troubling
questions” without even mentioning what those questions might be. Pl.’s Mot.
Summ. J. 20. The Plaintiff also contends that the CIA’s Chief Historian should
have himself submitted an affidavit, an “omission” that warrants a deposition
by the Assassination Archives. Pl.’s Reply 4. But it is not the duty of this
Court to “micro-manage” ……
1 Assassination Archives suggested additional search
terms in its opening brief, and was not satisfied when the agency gave detailed
examples of the search terms it had used. 3d. Supp. Shiner Decl. at 4-5; Pl.’s
Reply 7-8. But the CIA’s search terms are quite exhaustive, including searches
of many significant phrases (including “Hitler Assassination,” “1963
assassination study,” and “Dulles files”), as well as those same words
individually searched without quotes (plot, Hitler, assassination, Dulles), a
method calculated to “ensur[e] the broadest array of responsive hits.” 3d.
Supp. Shiner Decl. at 4-5. The Plaintiff’s suggestion that the CIA was
delinquent in failing to search phrases like “July 20 plot” and “plot to kill
Hitler” ignores the fact that those phrases would duplicate searches the CIA
had already performed for “plot” and “Hitler.” See Pl.’s Reply 7-8. And the
remaining suggestions—such as “Joint Chiefs meeting September 25, 1963,” and
“Castro overthrow,” Pl.’s Reply 7—stray far afield, and into micromanagement of
agency efforts.
…..search
efforts (or litigation strategy), particularly when an agency has met its
burden of demonstrating a systematic good faith search effort. Schrecker, 349
F.3d at 662. No statutory provision or court precedent requires affidavits from
all government employees involved in the search or dictates who among them
should be the affiant. I conclude that the presumption of agency good faith
stands unrebutted, see SafeCard Servs. Inc., 926 F.2d at 1201, and that the CIA
has established the adequacy of its search beyond any genuine dispute.
The
CIA Properly Applied FOIA Exemption 1
Exemption 1 applies when criteria laid out in an
Executive order authorizes information to be kept secret in the interest of
national security, and the information is in fact properly classified pursuant
to such order. 5 U.S.C. § 552(b)(1); Military Audit Project v. Casey, 656 F.2d
724, 737 (D.C. Cir. 1981). The CIA utilized Exemption 1 to redact parts of the
Propagandist’s Guide containing information related to intelligence methods
still in use, pursuant to Section 1.4(c) of Executive Order 13526. 2d Supp.
Shiner Decl. at ¶¶ 9-11. Executive Order 13526 authorizes original
classification authorities to classify information that “could reasonably be
expected to cause identifiable or describable damage to the national security.”
75 Fed. Reg. 707, 709 (Dec. 29, 2009). Moreover, the classified information
must “pertain[] to” one or more items on an enumerated list, including
“intelligence activities (including covert action), intelligence sources or
methods, or cryptology.” Id. at 709.
Assassination Archives contends that because the
Propagandist’s Guide is more than 50 years old, the redacted information has
been automatically declassified under Executive Order 13526. Pl.’s Mot. Summ.
J. 26-27. But the Order’s 50-year declassification provision only provides for
automatic declassification “not later than 3 years from the effective date” of
December 29, 2009, if the relevant agency head has not, “[i]n extraordinary
cases . . . within 5 years of the onset of automatic declassification,
propose[d] to exempt additional specific information from declassification.”
See Executive Order 13526, Section 3.3(h)(2). Here, that exact procedure has
occurred. The CIA issued a CIA Declassification Guide on September 26, 2012
(less than three years after the relevant Executive Order), with an exemption
for “sensitive information that could reveal an intelligence method in active
use.” 2d Supp. Shiner Decl. at 5- 6. This Guide was issued under the authority
of Director of the CIA, and approved by the Interagency Security Classification
Appeals Panel, as required by Executive Order 13526, Section 3.3(j). Id. at 6
n. 1. Assassination Archives also alleges that the information should not be
classified because the title “Propagandist’s Guide” gives away the details of
the redacted information. Pl.’s Mot. Summ. J. 25, 31. But a mere title does not
provide any insight into the CIA’s specific methods. On this record, I find
that the information that the CIA redacted from the Guide—namely, information
that might reveal an intelligence method still in active use— remains properly
classified under Exemption 1, and beyond the reach of FOIA.
The
CIA Properly Applied FOIA Exemption 3
Exemption 3 applies to matters that are
“specifically exempted from disclosure by [another] statute” if that statute
“requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue” or “establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3). Section 6 of the Central Intelligence Agency Act (CIA Act)
requires that the CIA protect from disclosure “the . . . names, official titles
. . . or numbers of personnel employed by the [CIA.]” 50 U.S.C. § 3507. The
National Security Act requires the Director of National Intelligence to
“protect intelligence Case 1:17-cv-00160-TNM Document 28 Filed 07/17/18 Page 8
of 13 9 sources and methods from unauthorized disclosure.” 50 U.S.C. §
3024(i)(1).2 The CIA invoked the National Security Act as independent authority
for redacting intelligence methods from the Propagandist’s Guide, and invoked
the CIA Act to withhold the names and phone numbers of the CIA employees that
conducted the search. 2d Supp. Shiner Decl. at 7-8.
Assassination Archives argues that the CIA should
not have withheld employee names, because the need to get to the bottom of the
mistakes made during the FOIA search outweigh any relevant privacy interests.
Pl.’s Mot. Summ. J. 29. But Exemption 3 is not a balancing test. Instead, “the
sole issue for decision is the existence of a relevant statute and the
inclusion of withheld material within the statute’s coverage.” Morley, 508 F.3d
at 1126. As mandated by statute, the CIA properly used Exemption 3 to withhold
the names and phone numbers of the CIA employees who conducted the requested
search. 2d Supp. Shiner Decl. 8; 50 U.S.C. § 3507.
Moreover, Assassination Archives challenges
application of Exemption 3 to the Propagandist’s Guide, because large portions
of the guide are public and it is over 50 years old. Pl.’s Mot. Summ. J. 28-29.
But again, this claim is irrelevant to the legal issue. Even though large
portions of the guide are public, the CIA withheld specific information in
order to “protect intelligence sources and methods from unauthorized
disclosure.” 50 U.S.C. § 3024(i)(1). Nothing the Plaintiffs have argued
undermines this material fact. Thus, the CIA properly applied Exemption 3.
2 Agencies other than the National Security Agency
may invoke this provision as grounds for withholding information under
Exemption 3. See Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009)
(accepting CIA invocation).
D.
The CIA Properly Applied FOIA Exemption 5
The CIA also redacted parts of internal
communications regarding the FOIA search pursuant to FOIA Exemption 5 and the
deliberative process privilege. Exemption 5 protects from disclosure
“inter-agency and intra-agency memorandums or letters which would not be
available by law.” U.S.C. § 552(b)(5). In other words, it covers records that
would “normally [be] privileged in the civil discovery context,” NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149 (1975), including the Executive Branch’s
deliberative process privilege. Coastal States Gas Corp. v. U.S. Dep’t of
Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). This privilege applies when the
relevant document is predecisional and deliberative, Access Reports v. Dep’t of
Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991), because otherwise disclosure
would undermine performance by discouraging candid discussion. See Dudman
Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). The
privilege also applies when material is “inextricably intertwined” with
deliberative material. See FPL Group, Inc. v. IRS, 698 F.2d 66, 81 (D.D.C.
2010).
The CIA contends that it properly withheld
communications between CIA staff that would reveal how internal search methods
were decided upon and conducted, as well as materials inextricably intertwined
with these communications. 2d. Supp. Shiner Decl. 8-9. Assassination Archives
makes the bald assertion, without a citation to the record, that the CIA’s
redactions “do not reflect a policy deliberation . . . rather they are
factually based records as to what was found or not found.” Pl.’s Mot. Summ. J.
31. This unsupported claim fails to rebut the presumption of good faith that I
must give to agency affidavits. SafeCard Servs. Inc., 926 F.2d at 1201. I
conclude that the CIA properly applied Exemption 5.
E. The CIA Properly Applied FOIA Exemption 6 An
agency may use Exemption 6 to protect “personnel and medical files” and files
that would constitute a “clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). If a privacy interest exists, the third party’s privacy
interest is weighed against the public interest in disclosure. See ACLU v.
Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011). The CIA invokes this
exemption as an independent basis for withholding the names and phone numbers
of agency personnel. 3d Supp. Shiner Decl. at 8-9.
Assassination Archives alleges that Exemption 6 does
not apply because disclosure of CIA personnel names and telephone numbers are
important for sniffing out why administrative errors occurred in this case, and
to vindicate the public interest in the John F. Kennedy assassination. Pl.’s
Mot. Summ. J. 31-33. But the connection between these records and President
Kennedy’s assassination are tenuous at best, resting on the Plaintiff’s theory
that the Kennedy assassination was motivated by U.S. efforts to assassinate
Fidel Castro, efforts that prompted the CIA to study assassination attempts on
Adolf Hitler.
So this case is two assassinations removed from the
assassination of President Kennedy. And even if I accepted the Plaintiff’s
proposition that public interest in the Kennedy assassination is relevant to
this case, and relevant to the CIA’s diligence during these search efforts,
that interest does not outweigh the privacy interests of CIA personnel in their
names and phone numbers. The public’s interest in figuring out why two
“no-records” emails were mistakenly sent is miniscule at best. And the fact
that Congress has seen fit make the personal information of CIA staff members
statutorily inaccessible also demonstrates the public’s interest in CIA
personnel avoiding personal scrutiny for their public service. See 50 U.S.C. §
3507. Accordingly, I conclude that the CIA properly applied Exemption 6.
President
Trump’s Order Requires Nothing Further
Assassination Archives also claims that the CIA’s
search efforts and redactions are inconsistent with President Trump’s order
regarding President Kennedy’s assassination records, as recorded in a White
House statement. That statement reads as follows:
STATEMENT
BY THE PRESS SECRETARY ON THE PRESIDENT JOHN F. KENNEDY ASSASSINATION RECORDS
October 26, 2017 . . .
Today, President Donald J. Trump took action to
ensure release of the remaining President John F. Kennedy Assassination
Records. Accordingly, the National Archives and Records Administration will make
approximately 2,800 records available in full for public access today. The
remaining records will be released with agency proposed redactions on a rolling
basis in the coming weeks. The President has demanded unprecedented
transparency from the agencies and directed them to minimize redactions without
delay. The National Archives will therefore release more records, with
redactions only in the rarest of circumstances, by the deadline of April 26,
2018.
2017 WL 4857002 (White House). The Plaintiff argues
that this statement gives added “weight to the public interests at issue in
this case,” and contends that the CIA has failed to comply with President
Trump’s orders. Pl.’s Mot. Summ. J. 23, 27-28, 30, 33. But this argument fails
to comprehend the limited scope of President Trump’s order, and the CIA’s
support for its redactions in this case.
Put simply, President Trump ordered that President
Kennedy’s assassination records be released swiftly, “with redactions only in
the rarest of circumstances.” 2017 WL 4857002. As explained above, the records
at issue in this case are only tenuously related to President Kennedy’s
assassination. Supra n. 11. President Kennedy’s assassination records are held
by National Archives, not by the CIA, and so the President’s order does not
even apply to this case. See 44
U.S.C. / 2017 note at Section 4(a)(1) (directing “the
National Archives and Records Administration” to establish “a collection of
records to be known as the President John F. Kennedy Assassination Records
Collection”). Even on the generous assumption that CIA studies of Hitler
assassination attempts are part of “the remaining President John F. Kennedy
Assassination Records” referenced by the White House statement, the order only
requires agencies to “minimize redactions without delay.” 2017 WI. 4857002. For
all of these reasons given above, I conclude that the CIA conducted a legally
adequate search, and has minimized redactions under applicable law.
IV.
CONCLUSION
For the forgoing reasons, the CIA’s Motion for Summary
Judgment will be granted and the Plantiff’s Motion for Summary Judgment will be
denied. A separate order will issue.
Date:
July 17, 2018
Signed
TREVOR
N. MCFADDEN
United
States District Judge
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